A Cry in the Night Part 2 of 3
A Case for Murder
After the second inquest, Lindy and Michael decided to follow through with their earlier plans to have another child. The realisation that she may be sent to jail convinced Lindy that now was the right time. If she went to jail she may be too old by the time she was released. As the trial was set for April, there was no reason why anyone would even know she was pregnant. If she did go to prison — well they would just have to deal with that problem if and when it arose. Unfortunately, there was a change in the scheduling of the trial, which would now be held in September. The press made much of this, claiming that she had intentionally fallen pregnant in order to gain sympathy from the jury and leniency in their sentencing.
The trial, which was to become known as 'the trial of the century' in Australia, began on 13 September 1982 before Mr Justice James Muirhead. The prosecution was lead by Ian Barker QC who had been Solicitor General of the Northern Territory; Des Sturgess QC; Tom Pauling, a Darwin barrister, and Alice Springs solicitor, Michael O'Loughlan who had been the solicitor at both inquests. The inclusion of Des Sturgess and Michael O'Laughlin was an unusual decision as, apparently, it is normal practice for a completely new team to be chosen to ensure there was no bias on the part of the Crown.
Acting on behalf of the Chamberlains was Andrew Kirkham QC; John Phillips QC; Stuart Tipple, solicitor of the Seventh Day Adventist Church in Avondale, and Greg Cavanagh, a legal aid solicitor from Darwin. Phillips had replaced Phil Rice as extensive trial experience was needed and Rice readily conceded that it was not his field. Cavanagh was included in the team as the Chamberlains had applied for legal aid and had to choose someone local.
Jury selection is a difficult process at the best of times, but in this case to find a group of twelve people with no preconceived ideas about the case would be almost impossible, considering the press coverage of the case and the strong emotional reactions of people in the Northern Territory. There were one hundred and fifty potential jurors, of which the Chamberlains were allowed to reject only eighteen, while the Crown had no limit.
With the jury, made up of three women and nine men, finally selected, the judge made a point of warning the jurors about the responsibility that they faced. Acknowledging the amount of publicity that the case had inspired, Muirhead implored them to base their decisions entirely on the evidence presented and to ignore anything that they may hear or have heard outside of the courtroom.
Ian Barker QC briefly outlined the Crown's case. He stated that, although Azaria's body was never found, they would easily see, from the evidence, that she was in fact dead. The manner of death they would also find difficult to determine precisely, because a body was never found, but it would be proved, from the scientific evidence presented, that Azaria had died due to the loss of a large amount of blood after having had her throat cut.
Barker informed the jurors that the Crown would not be attempting to explain why Lindy Chamberlain had killed her baby, in fact it would not be venturing any explanation. The Crown's evidence to be put before them would simply prove beyond reasonable doubt, that, for whatever reason, the baby was murdered by her mother. The mother's assertion that a dingo had taken her baby was a 'fanciful lie' intended to conceal the truth.
Barker went on to explain that the evidence given by Joy Kuhl was vital to the case as the presence of blood in the Chamberlains' car destroyed the dingo attack explanation given by Mrs Chamberlain no matter what there may have been to support such an explanation.
The first week and a half was spent mostly with witnesses who had been heard during the first inquest. Sally Lowe, verified once again that Azaria was alive before Lindy took her to the tent and that only between five and ten minutes had passed between the time that Lindy had put Azaria to bed and her raising the alarm that a dingo had taken her baby. She did not believe that either Lindy or Michael had had any opportunity to clean out the car or bury the baby. While the prosecution had naturally down played the significance of her testimony, Phillips' cross-examination soon reversed that. By making constant references to Barker's opening statements, he was able to show how the testimony of Sally Lowe, a direct eyewitness, contradicted the Crown's case on a number of points. Either Sally Lowe was lying or the Crown's allegations were wrong.
Greg Lowe further confirmed Sally's and the Chamberlains' story. When Judy West took the stand, the prosecution made much of the fact that ten or fifteen minutes had passed by before she heard Michael asking for a torch, implying that Michael had been deliberately slow in his attempts to search for the child. Under cross-examination, Kirkham was able to bring the emphasis back to her testimony that she had heard a dingo between her own tent and the Chamberlains' tent shortly before Lindy had raised the alarm and that she had stayed with Lindy in the campsite until she and Michael had left for the motel. The Chamberlains had not been together out of her sight for more than a minute. She was also given the opportunity of telling the court how, earlier that day, a dingo had grabbed hold of her eleven-year-old daughter's arm, biting it at the elbow.
Judy West, a qualified nurse and social worker, gave her professional opinion that both Lindy and Michael Chamberlain expressed all the typical signs of grief and shock that she would have expected in parents under such circumstances. She had stayed with Lindy throughout the period of searching and assisted in packing up the car when the Chamberlains were moved to the motel. It was also revealed, for the first time that the Chamberlains had walked out into the bush together on two occasions both at her insistence. Both times they had not ventured far and were definitely not carrying anything with them. When asked by Kirkham whether Lindy had told her what Azaria was wearing, she stated that Lindy had told her a jumpsuit, singlet, nappy and a cardigan.
Murray Haby was the next to give evidence. He had not been included in either of the inquests, which had always bothered him. It had also bothered him that the Chamberlains were not informed on the night of his following the dingo tracks and finding the depression. He was relieved that he now had the chance to tell exactly what he found.
When Senior Constable Frank Morris was brought to the stand, the prosecution attempted to give the impression from Morris' testimony, that Lindy had changed her story on the night of Azaria's death. Morris told the court that Lindy had firstly stated that she had seen something in the dingo's mouth, and then later said that she had not. Kirkham attempted to reverse this by referring back to Morris' statement during the first inquest in which he had stated that his first conversation with Mrs. Chamberlain had been very brief, and that he had found it difficult to remember what had been said. Morris agreed with this. He also agreed when Kirkham put it to him that he had not taken any notes on the night, and in fact had not written anything down until 26 August 1980. Although he was able to recall being shown the dingo tracks found by Haby, he had no recollection of seeing the depression that Haby had described.
Barker had spent a great deal of time with Morris going over the extent of the search. Realizing that his intention was to create the image that, although a wide area had been covered, no signs of Azaria were found. Phillips asked Derek Roff whether, knowing that dingoes were prone to bury their prey when being followed or chased, he had instructed the searchers to look for signs of digging or of something having been buried. Roff said that he had, but despite three days of searching they had found nothing. Phillips then asked him if he had seen the depression found by Haby. His memory was much better than Morris', he stated that he had actually seen three such depressions, from which he said the impression left had reminded him of a crepe bandage.
Both Roff and Morris told of dog or dingo prints that they had seen. Morris told the court that he had found dingo prints outside the tent in the corner near where the baby's bassinette had been. He claimed that he had taken photos of the prints but when he had them developed the shots were blank. Morris then told the court that Inspector Gilroy had found a stain mid-way along the right hand panel, fifteen or sixteen inches from the ground. It may have been blood. When Phillips asked if this was the blood that Dr. Andrew Scott had been unable to determine the origins of, Morris agreed.
When questioned about his first contact with Azaria's clothing on the afternoon that they had been found, Morris denied that he had immediately picked them up, claiming that he had not done so until after receiving instructions to do so by radio telephone from Alice Springs. He had then picked them up to check whether the booties were inside after undoing the remaining press-studs. He had replaced them exactly as he had found them, then photographed them.
Wally Goodwin was adamant that this was not the case. There had been no phone call. Morris had picked the clothes up immediately upon arriving at the scene. The press-studs had been opened down to the leg. The photographs in no way resembled the way they had been when Wally had found them.
Charlwood, now promoted to Detective Sergeant First Class, would refer to his notes for his testimony. Notes, which he had taken from tape recordings of conversations, he had had with both Lindy and Michael Chamberlain. Phillips attempted to show the judge that Charlwood had made these recordings unfairly, unlawfully and their content was not relevant enough to qualify. In Australia, the fact that it is unlawful to tape record witnesses without their knowledge is not enough to have the evidence disqualified. Charlwood was asked whether he, at the time of making the recordings, believed that Lindy Chamberlain had killed her child. He said he did not, although he had felt that she was involved in some way. When questioned about the legality of taping telephone conversations, Charlwood claimed that at that time he was not aware of any legislation on this matter. Referring to the first inquest, Phillips asked whether he had told the coroner about his secret tapings, he said that he had not as far as he could recall. When reminded of the question asked of him by Phillip Rice QC, at the first inquest, as to whether he had at any time secretly taped the Chamberlains, Charlwood agreed that he had only mentioned the attempted recording in the car. Phillips wondered when Charlwood had first discussed the recordings with a lawyer, to which Charlwood told him that the only person he had told about them was his superior, two weeks previous.
The judge was not convinced that Charlwood had been evasive, or that he had enticed Lindy unfairly to answer questions she might not otherwise have answered if she had known she were being taped. He decided the point against the defence. Charlwood could keep his recordings.
Myra Fogarty, who had resigned from the police force since the first inquest due to harassment from her colleagues, again testified to the poor quality of the initial forensic testing carried out on the clothing, tent and other items submitted. She agreed that she had had no training in any aspects of the proper handling of forensic evidence in the three months she had been in the scientific department.
Counsel for the defence made application to the court to be able to advertise to find a particular family who could testify to a dingo attack on their daughter a couple of weeks before Azaria had been attacked and killed. The Chamberlains had been told by rangers that a three-year-old child had been dragged by the neck from her parents' car while they were holidaying at Ayers Rock, but all attempts to find them had been fruitless. Muirhead quickly dismissed the application on the grounds that knowledge of the propensity of dingoes to become aggressive toward humans was widely known and that other evidence being presented already clearly stated that dingoes were more than able to carry a baby from a tent.
While the defence was unsuccessful in this application, it did succeed in having the evidence, given by the Chamberlains in the second inquest, ruled out. Phillips had explained that the Chamberlains had been asked to give their evidence without any prior knowledge of the evidence that would be given during the second inquest. Although they did have the legal right to refuse to testify on the grounds that to do so might incriminate them, the extent of the publicity surrounding the case made it impossible for them to do so without causing prejudice to any hearing of their case when it came to trial. Muirhead conceded that the unusual circumstances surrounding the case should have taken this into consideration during the inquest. It was a great victory for the Chamberlains.
The next bout of witnesses was not strong for either the defence or the prosecution. Harding's testimony, that hairs found could have been that of a cat or a dingo, still left things wide open, besides Fogarty's earlier evidence tended to discount the validity of his findings anyway. Dr. Kenneth Brown could no longer be taken seriously as he now admitted that some of the damage done to Azaria's singlet may have been caused by a dingo, and had been forced to acknowledge that some of the tears in one of the blankets, which he had sworn were made with a cutting instrument, had in fact been made by moths. Evidence presented by Torlach, a soil analyst, stating that the sand found in the jumpsuit was similar to soil found at the campsite, on the sand dunes and near the ranger's dwelling brought no new revelations, as it had already been made clear that all of those areas had been searched thoroughly, making it very doubtful that Azaria's body had been buried there.
When Sergeant Cocks came to the stand, Phillips knew that it was important to highlight the lack of blood reaction on the fibres found in the car and the camera bag. If the child had been stashed away in the camera bag, as the prosecution would have the jury believe, then it would be reasonable to expect that there would be blood on fibres found inside it. Cocks proved to be of more help to the defence than they could ever have hoped for. Cocks contradicted his earlier testimony in the second inquest on two occasions. When describing the fibres on the collar of the jumpsuit, Cocks stated that "all (were) consistent with having been cut". Phillips pointed out to him that during the inquest he had stated that "the majority were cut". Cocks explained this apparent inconsistency as being caused by the fact that he had not been able to examine all of the fibres as they had withdrawn back into the weave, those that were not withdrawn were consistent with cutting. Phillips then stressed the point that the withdrawal of fibres back into the weave was a characteristic of tearing.
The second contradiction by Cocks was in his testimony about the lack of blood found on the fibres. Phillips asked Cocks whether he had tested the fibres for blood. Cocks answered no, as he was not an expert on blood. When reminded of his testimony during the inquest in which he had stated that there had been no "reaction to blood" Cocks stated that his testimony had been inaccurate. Phillips was able to completely discredit Cocks' testimony by reminding Cocks of another case in which the number of errors in his scientific evidence had been serious enough that the case had been sent for retrial.
Phillips was not yet finished with Cocks.
It was now time to look at the evidence that had convinced Cocks and the botanist, Kuchel, that someone had "deliberately and forcefully" rubbed the clothing in a broad-leafed plant (Parietaria debilis) to counterfeit dragging and rough usage. Cocks had claimed that large quantities of this broad-leafed plant had been found on the clothing. Phillips called for that material to be produced as the prosecution had not brought it before the court when they had questioned the Sergeant. The clerk brought forward three vials each containing barely enough material to cover a fingernail. Barker quickly attempted to cover his tracks by stating "Your Honour, I would like to say of these exhibits that my attention was drawn to them, and I intended to produce them. I showed them to Mr Phillips." As Phillips passed the vials to the jury he answered "I accept that Mr Barker had not seen them when this witness was giving evidence."
The next witness would not be so easy. Despite all of his efforts, Stuart Tipple had not been able to find anyone in Australia with higher qualifications in the area of fabric and fibres than Professor Chaikin. The best the defence could do was to dissect every segment of his evidence raising as many doubts in the jurors' minds as possible.
Chaikin began his testimony for the prosecution with a dramatic demonstration of the cutting of a jumpsuit with scissors. With a flourish he showed the court the tufts of fibre which had fallen from the fabric when it was cut. The white threads clearly discernible against the black fabric on which they had landed. He then proceeded to explain in great detail the procedures he had used to examine Azaria's jumpsuit, singlet and the tufts of fibre found in the car and camera bag. Even with accompanying slides and photographs, Chaikin's evidence was beyond the comprehension of most in the courtroom that day. It was an impressive display.
Phillips chose to examine Chaikin's findings in the camera bag first, pointing out to him that the camera bag had not been new when the Chamberlains came into possession of it, having been used extensively for a number of purposes. It had also not been used exclusively for camera equipment by the Chamberlains. In fact it had been used in a number of ways, including as a carryall for clothing. Under these circumstances did the professor feel that it would be surprising to find baby hair in the bag? Chaikin was not willing to comment on that, his concern was not how the hair got to be there just that it was. Phillips wanted something more definite so asked Chaikin how many hairs an infant would be likely to loose in a day, to which he expressed the opinion that they could lose hundreds a day. Doubt was established about the importance of the hairs in the camera bag.
Chaikin had considered that some of the baby hairs found appeared to have been washed, a factor that could have been used by the prosecution to imply that the camera bag had been washed, which could have helped them to explain the lack of reaction to blood in the camera bag, a fact which was creating difficulties in the prosecution's case against the Chamberlains. Phillips asked him directly whether this indicated to him that the bag had been washed to which he said no.
His evidence in regard to the damage on the nappy was that it could have been caused by any method involving the pushing of a sharp object into the plastic. Upon questioning by Phillips, he agreed that he could not discount the possibility of a dingo's claw or tooth having caused the damage.
Phillips now wanted to discuss some of Professor Cameron's evidence, in which he claimed that if the dingo had held the child by the neck with the collar up, the collar would have been damaged. Phillips pointed out that this would tend to contradict the results of the tests that Chaikin had performed which showed that a tooth could actually penetrate a child's flesh for some distance and still not cause damage to the jumpsuit or the singlet. Chaikin agreed that this was the case, it would cause an indentation from which the fabric would recover. Still referring to Chaikin's experiments, Phillips asked whether the tension in the fabric required to actually cause a hole, like that found in Azaria's singlet, could have been achieved by an animal holding part of the garment with its paws and the other part with its teeth. Chaikin could not discount this possibility either.
The last area of Chaikin's evidence, which was damaging to the Chamberlains' case, was his finding that the fibres were cut with scissors. To bring doubt into the minds of the jurors, Phillips questioned Chaikin's choice of fibres to be used in his examinations. Chaikin explained that he viewed the ends of all of the damaged areas of the jumpsuit, concentrating only on those fibres, which showed evidence of having been cut. When asked how many such fibres he was able to use, Chaikin had to admit that he had only been able to find one. As a final attack on Chaikin's conclusions that a dingo had not caused the damage found on Azaria's clothing, Phillips wanted to know whether Chaikin had conducted any experiments on clothing which had been bitten by a dingo. Chaikin argued that he had used a dingo tooth, but had to finally admit that no, he had not ever seen clothing after it had been bitten by a dingo.
Phillips was finished with Chaikin; the rest was up to the jury.
The presence of blood in the car was vital to the prosecution's case, without it they really had no case at all. Rohan Tew, not mentioned in the list of witnesses, had worked on the Chamberlains' car and claimed to have seen bloodstains on the underside of the dashboard. Meltcalfe had found the bloodstains on the ceiling of the footwell on the passenger side of the car, known to the press and public as the "arterial spray". The plate was shown to the jury as Metcalfe described how he had found the blood spray, one year after Azaria's death, which was still sticky to touch.
Dr. Tony Jones, the government pathologist in Darwin, had tested the plate. He was also the first pathologist to examine Azaria's clothing. He testified that the bloodstains on the clothes might have come from a crushing blow to the head or damage to the neck. He could not exclude the possibility that this damage could be caused by a dingo. Unlike Cameron, he was unable to discern a handprint on the clothing. When questioned about the so-called 'arterial spray' found by Metcalfe, Jones could not say that this was a feasible explanation for the spray pattern found on the plate. Kirkham was not finished yet. He handed Jones an oblong metal plate cut from the footwell of a hatchback Torana, the same make as the Chamberlains' car. Jones admitted that he could see a spray pattern, which was similar to the one found in the Chamberlains' car. Kirkham did not enlighten him, or the court as to what it was.
Well accustomed to giving evidence, Kuhl presented well. Carefully she explained the procedures she had used to test the blood found in the car. It was highly technical information, which challenged even the most experienced journalists, well used to scientific testimony. The results of the tests showed the presence of foetal blood in a number of places in the car.
Phillips' first question to Kuhl was why she had not presented the original test plates to the court. Kuhl informed him that they had been destroyed. No, she hadn't taken any photographs of them first. It was standard procedure in her laboratory.
Harking back to statements made by her during the inquest, Phillips asked her whether her statement that a foetus had no adult haemoglobin was scientifically correct, Kuhl conceded that it was not.
As part of her testimony Kuhl had stated that she had determined that the blood in the car was old enough to be Azaria's but not old enough to be that of an injured man who had bled in the car the year before that. Phillips wanted to know how she could be sure of this. Did she have wide experience in working with old blood? No. Had she ever worked with blood that had been exposed to the extreme heat of summer? No she had not, and, no, there was no way to specifically state how old blood was. Yet she was still confident in her determination of the age of the blood? Yes.
Tipple then set up a projector screen. Photographs of demonstration tests Kuhl had done using the same anti-sera she had used in this case were clearly displayed. Phillips pointed to the presence of two bands, indicating two separate reactions in the tests, in all of the slides. Kuhl refused to acknowledge that there was more than one band, the other bands were merely smudges with no scientific significance.
To support Kuhl's testimony, the prosecution called Kuhl's supervisor to the stand who swore that he had viewed the test plates before they were destroyed and was confident that Kuhl had performed all of her tests to his own high standards. To add further weight to this, the prosecution brought, from England, Dr. Culliford who had developed the crossover electrophoresis, one of the tests Kuhl had used. He stated that the procedures Kuhl had used were correctly administered. Answering the defence, he admitted that he had not actually seen the original test plates himself.
There was no need for Phillips to question Kuhl any further as he had much more to come later.
Bernard Sims testified that in his vast experience with animal attacks on humans, he was absolutely certain that a dingo could not have caused the damage done to Azaria's clothing. He explained in great detail the types of tears he would expect to see in a dingo attack, using photographs to show the nature of dog bites in human flesh. Sims held up a dingo skull, the jaws fell open. By using the head of a doll about the size of a three-month-old child, Sims demonstrated to the court that it was impossible for it to fit inside the jaws.
Kirkham questioned Sims further on this point. He was sure that a dingo was not capable of seizing the head of a child. No, the opening of the mouth would not be wide enough. If a dingo seized the head of a child with a forty-centimetre circumference, the jaws would be dislocated? Yes.
Kirkham then showed Sims the photograph of a dingo holding the head of a doll, much like the one Sims had used earlier, in its mouth. So much of the head, crown first, was inside its mouth that the teeth reached nearly to its ears. Did Sims now concede that it was possible for a dingo to hold a child's head in its mouth without dislocating its jaw? Yes, he would accept that.
When Professor Cameron came to the stand, Barker went to great lengths to establish Cameron's impressive credentials and vast experience before he repeated the testimony he had first given during the inquest. Basically, his expert opinion was that there had been no evidence of a canine attack. All the evidence suggested to him that Azaria's throat had been cut across or around the neck, by a person using a cutting instrument. There was not enough blood for it to have been a dog or dingo, nor was there enough damage done to the jumpsuit, and no saliva. His life-sized photograph of the 'handprint' he had discovered using ultra-violet fluorescent photography, showed that the child had been held upright by a small adult's bloodstained hand.
Phillips did not ask Cameron any questions about his evidence. Instead he wanted to talk about another case that the professor had given evidence for, known as the Confait case. One in which three boys were found guilty because of his evidence. Barker objected to this line of questioning but Muirhead overruled him. What interested Phillips the most was that, after those boys had been in prison for three years, an inquiry showed that the evidence Cameron had given was done so without any reference to all of the facts in the case, facts which would have had a strong influence on how he had interpreted his evidence. Was it true that the result of this inquiry was that the boys were found to be innocent? "Yes." Admitted Cameron. "That is correct."
Phillips had a point to make. He suggested that the reason that Cameron had given incorrect evidence in this case was that he did not have all of the correct knowledge of the surrounding circumstances. Cameron agreed with this. What Phillips now wanted to show was that Cameron had done the same thing in the Chamberlain case. Cameron had formed the conclusions of his report, that a dingo could not have been responsible for Azaria's disappearance or death, prior to the first inquest. Cameron agreed with this. Without knowledge of the fact that the press-studs on Azaria's jumpsuit had been fully opened down the front, as testified by both Morris and Goodwin. Had he not stated at the inquest that only the first two press-studs were open? Yes, agreed Cameron. Was his belief that it would be impossible for a dingo to remove a child from the clothing without it being open, an important factor in forming his opinion? The professor conceded that this was the case.
Phillips showed the professor a photograph of Azaria's clothes as Morris had placed them to display how he remembered them to have looked when he found them. He asked Cameron if he would describe the clothes as being in a 'neat bundle.' Cameron could not say that, but he had been told that Brown and the police had found them in a neat bundle. Based on that, he had said in his report that "he had never known a member of the canine family leaving clothes in a neat bundle."
In Cameron's report he had stated that the last time Azaria had been seen alive was at three thirty on the afternoon of her disappearance, except for an alleged kicking motion at the barbecue site. Phillips wanted to know whether this belief had influenced the formation of his opinions about how Azaria had died. Cameron agreed that they had. Had professor Cameron read Judy West's statement in which she had said she had seen Azaria unwrapped, wearing a pink dress at sunset? Yes, he had but it did not indicate a time. " Would the sun be setting at half past three?" asked Phillips. "No, I don't know when it was." Shrugged Cameron.
Referring again to Cameron's own report, Phillips asked whether the professor had stated "I rely entirely on Dr. Scott's negative evidence, in that there was no saliva present" in reference to the child's clothing. Cameron agreed that he did. Would Cameron agree that the words in Scott's report, "Of course, there is no guarantee that there is no saliva elsewhere." did not have the same meaning as there was no saliva present? Cameron would accept that.
The last item of Cameron's evidence was the alleged handprint. Phillips asked Cameron whether he had stated that he had found an impression of a hand in blood. Cameron agreed that he had. Phillips wanted to know whether, arising out of the Confait case, the professor would agree that blood from an injury could take on the apparent shape of objects, by accident.
Cameron was not able to see the connection with the Confait case so Phillips explained. During the course of further investigation into the Confait case, the barrister for the defence, Blom-Cooper, had found photos of the victim's neck which had not been shown during the original trial. He thought he could see a word written on the victim's neck. New photos were taken of the victim's neck which, when blown up by three hundred times, revealed to Blom-Cooper the word "WANK." At the time Cameron had not been able to see this word. To Phillips, Cameron conceded that there was a general appearance of those letters on the throat. The formation of the letters had come about by sheer accident when the blood had dried. Cameron then conceded that blood from an injury could, purely by accident, take up apparent shapes of objects.
The prosecution's presentation of its evidence was now complete. It had not gone well for them, as the defence cross-examination had been strong. While the Chamberlains and their counsel were happy with how things had gone so far, it was too soon for celebration.