A Cry in the Night Part 3 Of 3
The Royal Commission
The final battle in Tipple's legal war with the Northern Territory government began with the commencement of the Royal Commission of Inquiry into the convictions of Lindy and Michael Chamberlain on 8 May 1986, in Darwin.
Justice Trevor Morling, a Federal Court Judge, was appointed as Commissioner, assisted by Chester Porter QC and William Caldwell. Ian Barker QC, initially declined a request that he represent the Crown, but later changed his mind. He was assisted by Michael Adams and Elizabeth Fullerton. Acting for the Defence were John Winneke QC, Brind Woinarski and Ken Crispin.
As part of its preparations for the inquiry, the legal team for the Crown made a trip to Canada, the USA and England in search of forensic support. The Northern Territory government paid for the trip. When the Defence applied for financial assistance for a similar trip, the Northern Territory refused to pay for it. Instead the Seventh Day Adventist Church paid for it.
The inquiry was to fully explore every aspect of the Crown's case; the evidence submitted during the trial and both inquests; as well as the police investigations that led to the trial.
For the first time, evidence of dingo attacks on children and adults were allowed. These had been available as far back as the first inquest, but never brought forward in court due to restrictions placed on the Defence in its submission of this type of evidence. The number of these submissions and the behaviour of dingoes, which they revealed, were supportive of Lindy Chamberlain's claims that a dingo took her baby from the tent.
In regard to the evidence presented by the Crown regarding the damage on Azaria's clothing, Justice Morling was highly critical. He believed that Chaikin's testimony was unworthy even of a mention in his report. It was revealed during the inquiry that Chaikin had not conducted any examination of the jumpsuit or jumpsuit fibres himself, as he had sworn under oath, but had in fact given the task to other scientists in his department.
Morling called Dr Barry Hoschke, a researcher for the CSIRO, as an impartial witness. His findings on the jumpsuit damage supported Smith's experiments for the defence. Hoschke, also informed the commission that, at the time the jumpsuit was tested by Chaikin's staff, the openly stated opinion was that "the Chamberlains were guilty of all kinds of outrageous things" and their religious beliefs were discussed with complete ignorance. Tests were not kept confidential and the results became common knowledge long before they were presented in court. He believed prejudice had affected the objectivity of the scientists involved in the examinations of the clothing.
Morling found that in regard to the damage on the jumpsuit, the only substantial evidence that could be accepted was that it was a dingo's dentition that had caused it. Even up until the commencement of the inquiry, further testing for blood in the Chamberlain car had not proceeded because the Northern Territory government would not agree to have the testing done by the Victorian Forensic Laboratory. During the opening stages of the Commission, a battle between the Defence and the Crown as to who should do the testing for the inquiry ensued. The Crown attempted to convince Morling that the Crown should do it and not the Commission. The Defence wanted the Commission to be responsible. Morling chose to agree with the Defence and let the Victorian Forensic Laboratory conduct the tests.
Tony Raymond, the forensic biologist in Victoria, was asked about the tests he would be conducting. He told them that the tests would react with old blood, as the haem molecule in blood was very stable. Even if there were only very minute amounts of blood, the test was extremely sensitive. He believed that if the tests in 1981 had shown a positive reaction to blood then they still would.
His results were startling. His tests revealed that there was no blood in the Chamberlains' car. It was then revealed that other scientists had tested for blood with negative results but neither the Crown, nor the police had informed the Defence, nor was this evidence submitted at the trial. An English scientist, Dr Lincoln, had achieved the same result when testing samples for the Defence. They had chosen not to use this during the trial, as they were not aware of these other results because it was a question of foetal versus adult blood that was needed. Not knowing that others had found the same results had invalidated its significance.
These results annihilated the Crowns case. Kuhl's results had to have come from some other contaminant in the car. Boettcher was vindicated. These results were repeated for the camera bag, Kuhl had been the only person who could find blood on it. Further damaging to Kuhl's testimony, was the revelation that Dr Simon Baxter had been away on holidays at the time of most of Kuhl's testing and other notes taken while he was there had never been signed by him. This resulted in Baxter's testimony being rejected by the Commission as well. Culliford, who had supported Kuhl's evidence, was unable to provide any written record of his testing, and couldn't even remember which tests he claimed to have carried out during the trial. His testimony was rejected.
Smith's work on the under-dash spray was confirmed by the Victorian Forensic Laboratory leaving the Crown with no evidence of blood anywhere in the car or the camera bag. A juror, who appeared before the Commission, testified that it was the Crown's evidence regarding the blood that had caused her to convict Lindy and Michael.
For the first time Senior Constable Barry Graham was called. He had inspected the car for blood at Mt Isa Police Station when Charlwood first interviewed Lindy and Michael. He testified that he had thoroughly searched the car but found no signs of blood and no signs of cleaning.
Morling accepted the Defence's evidence regarding the testing of copper ore giving a positive reaction to blood as a reasonable explanation for some of the reactions Kuhl had recorded.
The Commission vindicated the objectivity and the general accuracy of the eyewitness testimony that had been brought into doubt during the trial. Morling stated that if he had been the judge during the trial he would have directed the jury to acquit on the strength of their combined evidence. Sally Lowe's evidence that she had heard the baby cry would have been enough for him to consider it unsafe to accept the Crown's case for murder.
The Aboriginal tracker Nipper Winmarti, who had not testified at the trial, told the Commission of the tracks he had found at the tent site. From these tracks, he had seen that a dingo carrying the baby moved eastward away form the tent, turned south from Sunrise Hill to the road, then swung westward and past a ranger's house. The tracks were lost for a short time because of traffic on the road. They were picked up again heading westward to where the clothing was found. Not only did this confirm the Chamberlains' story, but also succeeded in putting to rest a version that had become popular, that one of the ranger's pet dingoes had killed Azaria. The ranger's wife had then disposed of the body in order to protect the dingo. During Barbara Winmarti's testimony, she stated that she had seen the dingo tracks leading away from the tent, she believed that it was carrying the baby. When asked by the Crown whether it may have been carrying a joey she asked, "Was there a joey in the tent?"
Justice Morling concluded that the botanical material found on the jumpsuit and matinee jacket were consistent with a dingo carrying the clothed baby from the camping area, across the plains country to the Rock. All of the Crown evidence in this regard was revealed to have been incorrect and based on incorrect information. The even distribution of dirt on the jumpsuit was found to have come from vacuuming, not burial, as claimed by the Crown.
It was revealed that Harding, the witness for the Crown in the trial, had gone to England and performed a computerised analysis of the hairs from which he had written a second report on 17September 1982, before the trial. The Defence counsel had never received his report that stated that he now believed the hairs to be canid. Despite his new knowledge, in the trial he continued with his original inquest testimony that they were probably cat hairs.
The Commission addressed the rumour that Aidan Chamberlain had killed Azaria. The possibility was dismissed as impossible because he could not have done this without anyone noticing blood on his clothing. Morling did find that Aidan's proximity to Lindy at the time of her call that a dingo had taken Azaria was extremely strong evidence that the Crown's allegations that Lindy had murdered her baby were unsubstantiated.
Justice Morling delivered his report to the Governor-General and the Administrator of the Northern Territory on 22 May and 25 May 1987 respectively. The Northern Territory government, without any consideration for the Chamberlains, set 9 June 1987, Azaria's birthday, as the date for the release of the report. However, leaks of the report's contents forced them to release it a week early.
The Morling report strongly criticised the Northern Territory Police department for their obvious prejudice toward the Chamberlains and allowing it to influence the way in which they treated the case. His direct criticisms included: their failure to protect and preserve evidence at the scene of the incident as inexcusable; the failure to follow up leads which supported the dingo story (i.e. Aboriginal trackers and blanket damage) was irresponsible; their prejudice and bias in the case was further affirmed by their refusal to inform the Defence of any witnesses who negated the Crown case or supported the Chamberlains' story; the wilful leaking of damaging rumours and forensic results to the media was culpable conduct; he held that police in Mt Isa were responsible for the spreading of salacious gossip; and that the very convenient loss of vital evidence in an alarming number of instances was a disturbing feature of the case.
Justice Morling's findings were that there was absolutely no evidence of human involvement. He stated that he "did not think any jury could properly convict them on the evidence as it now appears." The Crown case was impeded by obstacles " both numerous and formidable" "Almost every facet of its case is beset by serious difficulties." He believed that the appeal to the High Court "would have succeeded if the evidence had been as it now appears"
To conclude his report, Morling stated "In my opinion, if the evidence before the Commission had been given at the trial, the trial judge would have been obliged to direct the jury to acquit the Chamberlains on the ground that the evidence could not justify their conviction."