Chamberlain, A.L. v The Queen

CHAMBERLAIN v. THE QUEEN (1982) 69 FLR 445
Criminal Law

COURT

FEDERAL COURT OF AUSTRALIA

Fox(1), Northrop(2), Lockhart(3) JJ.

CATCHWORDS

Criminal Law - Bail - After conviction for murder - Pending appeal - Exceptional circumstances - Welfare of applicant's child considered - Expert evidence - Federal Court Rules, O. 52 r. 35(3).

HEADNOTE

The applicant, the first appellant in the proceedings, was convicted on 29 October 1982 in the Supreme Court of the Northern Territory of the murder of her nine weeks old baby daughter, and was given the mandatory sentence of life imprisonment which she had commenced to serve. In the same Court on the same date, the applicant's husband, the second appellant, was convicted of being accessory after the fact but was released on a bond. The applicant applied to the Federal Court for bail pursuant to O.52,r.35(3) of the Federal Court Rules, pending the hearing by that Court of appleals against the convictions. Two days before the hearing of the application, the applicant gave birth to a baby girl but was not permitted by the Northern Territory prison authorities to have possession of the baby in prison to breast-feed and mother the child. Evidence was given by a psychiatrist and a psychologist, in support of the application for bail, that the applicant did not suffer from any, nor had she suffered from any, identifiable psychiatric disorder; that if the infant child was removed from its mother there would be an absence of psychological bonding between them which would have adverse psychological effect on both mother and child with the major effect on the child; that the applicant presented as a caring mother genuinely concerned for the child's welfare; that she would not harm the child; that no behavioural abnormality or pathology could be detected in the applicant and that she did not present a danger either to herself or to the child. This evidence was not disputed by the Crown.

Held: Per curiam (1) The general principle of law is that bail will not be granted pending the hearing of an appeal from a conviction and sentence unless there are exceptional or special circumstances.

R. v. Southgate (1961) 78 WN (NSW) 44; R. v. Kulari(1978) VR 276, referred to.

(2) There is insufficient material before the Court to enable it to form a view as to the applicant's prospects of success in the appeal. The most that can be said is that there is a bona fide arguable case.

Per Fox and Northrop JJ., (Lockhart J. dissenting) - (1) The medical evidence, concerning the likely effects of separation of the child from its mother, although in some respects unsatisfactory, should be accepted.

(2) The special circumstances of this case constitute exceptional circumstances justifying granting of bail.

Per Northrop and Lockhart JJ. - What are exceptional circumstances differ from case to case. There are no inflexible rules. Ultimately it is for the court to determine on the facts of each case.

Per Fox J. - (1) The courts have in recent years taken a wider view of the power to grant bail pending or during trial, and the practice has developed of doing so more freely than was formerly the case. The situation after conviction is, however, very different. There are plainly policy reasons why there should not be a wide latitude in granting bail simply because a notice of appeal against conviction or sentence is lodged.

(2) The central consideration in this case is the welfare of the child in the very difficult situation into which she was born. It is in the interests of the community as well as the welfare of the child and the mother that the child develop a sound relationship with her mother which relationship would be in serious jeopardy if they are forcibly separated.

Per Northrop J. - None of the following facts, severally or collectively, constitutes exceptional circumstances sufficient to justify the granting of bail pending the hearing of the appeal; that the applicant is the mother of two other children, boys aged nine years and six years; that she was allowed bail by the trial judge during the several weeks of the trial; that between her committal for trial and the commencement of the trial she resided at Avondale College of Advanced Education with her husband and two sons; that she desires to live there with her family pending the hearing of her appeal; that she has no prior convictions and does not possess a passport.

Per Lockhart J. - (1) It is more likely that bail will be granted pending an appeal from a conviction for a less serious offence or if the sentence appealed from is short or if substantial delay will occur before the appeal is heard. None of these circumstances apply here.

(2) Although due weight must be given to the expert medical evidence, it would be speculative to try and assess in any reliable or convincing way the impact which these proceedings and the separation of mother and daughter may have upon either of them.

(3) The decision to separate mother and child immediately after birth was made by the relevant authorities in the Northern Territory, not by this Court. The court has no power to deal with such matters, nor should it express any views about that decision. In reality, this is an application to appeal from that administrative decision.

(4) It is somewhat odd and incongruous that a person convicted of murdering baby daughter should be able to obtain bail on the ground that she wishes to nurture her next born child, also a daughter.

HEARING

1982, 18, 19 November. #DATE 19:11:1982

APPLICATION.

Application by the first appellant for bail pending hearing of her appeal against her conviction and sentence for murder.

M. M. McHugh Q.C. and G. T. W. Miller, for the applicant.

I. Barker Q.C. and M. J. King, for the respondent.

Cur.adv.vult.

Solicitors for the applicant: Brennan & Blair.

Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.

F.P.C.

JUDGE1

19 November 1982

Fox J. In this case Mrs Chamberlain applies for bail pending the hearing of her appeal against conviction for murdering her baby daughter on 17 August 1980. The trial was before a judge and jury in the Northern Territory Supreme Court. The conviction was entered on 29 October 1982 and was followed by a mandatory sentence of life imprisonment which Mrs Chamberlain has started to serve in the gaol at Berrimah near Darwin in the Northern Territory. (at p446)

The offence charged and proved took place near Alice Springs, apparently when the applicant and her husband were on a camping holiday there. Since early 1981 they had lived with their two sons, aged nine and six respectively, at Avondale College, a College of Advanced Education situated at Cooranbong in New South Wales, which is approximately 120 kilometres north of Sydney. (at p446)
Mr Chamberlain was convicted at the same time before the same court of being an accessory after the fact and has been released on a bond. (at p447)
The present application is made underO. 52, r. 35(3) of the Rules of the Federal Court. It is being heard in Sydney by reason of an order changing venue made by Mr Justice Muirhead, a judge of the Northern Territory Supreme Court and of this Court, who was the trial judge. (at p447)
I do not doubt that the law is that the applicant must show exceptional circumstances before the court can order her release on bail. This phrase is not a term of art. Plainly it covers and can relate to a wide variety of different situations. It is true, as counsel for the applicant argued, that the courts have in recent years taken a wider view of the power to grant bail pending or during trial, and the practice has developed of doing so more freely than was formerly the case. (at p447)
The situation after conviction is, however, very different. There are plainly policy reasons why there should not be a wide latitude in granting bail simply because a notice of appeal against conviction or sentence is lodged. (at p447)
In the present case it is said in the first instance that the applicant has a strong case for success on her appeal; that she is likely to succeed. Passages were read to us from the summing up of the learned trial judge when he was dealing with the Crown case and in relation to his directions on the standard of proof. On the other hand, we have been told by counsel for the Crown of some features of the trial which suggest that the appeal may not succeed. (at p447)
The fact is that we do not have material before us which would enable us to form a view as to the prospects of success. The trial was lengthy and the evidence voluminous. The most that I can conclude is that there is a bona fide and arguable case. This conclusion, as I understand, is not disputed by the Crown. I certainly go no further in expressing a view as to the merits of the appeal. (at p447)
Unless and until the conviction is set aside, Mrs Chamberlain must be regarded as a person convicted of the murder of her infant daughter, albeit one who has an arguable case that she should not have been convicted. (at p447)
It is put by senior counsel appearing for the applicant that there is no reason to believe that if granted bail, Mrs Chamberlain will abscond. I do not think that there is any contest on this point. (at p447)
The essence of the applicant's case relates to the fact that since conviction she has given birth to a daughter. This happened on 17 November 1982, two days ago. The daughter is still in hospital in Darwin but was separated from her mother immediately after birth. Mr Chamberlain is waiting to take the child into his care. (at p447)
The evidence from a highly experienced psychiatrist is that when he examined Mrs Chamberlain on the day before the birth, she was suffering from reactive depression. His view is that this condition:

" . . . primarily arose out of the fact that she had been informed on the day prior to the interview that the authorities would not permit her to keep her child at birth or even to allow it to be brought to her on the occasion of permitted visits." (at p447)

I set out further parts of his evidence. In par. 14 he says:

"I am also of the opinion, from interview, that the applicant, Alice Lynne Chamberlain, does not give a history consistent with having suffered from any psychiatric disorder in the past." (at p448)

Paragraph 15:

"I am of the opinion that if the infant child, which I understand has recently been delivered of the applicant, Alice Lynne Chamberlain, is removed from its mother then there will be an absence of psychological bonding between the mother and child." (at p448)

Paragraph 16:

"The absence of psychological bonding between mother and child will have, in my opinion, an adverse psychological effect on both the mother and on the child. However, the major effect will be on the child." (at p448)

Paragraph 17:

"I am of the opinion that the applicant, Alice Lynne Chamberlain, presents as a caring mother and in particular a person who is genuinely concerned for the welfare of her child which was unborn at the time of the interview." (at p448)

Paragraph 18:

"I am of the opinion that the applicant, Alice Lynne Chamberlain, would not harm the child which has been born to her were she to be afforded the opportunity of mothering it." (at p448)

Paragraph 19:

"In relation to the opinion I have presented in par. 18 I remain of that opinion even if it were true that the applicant did in fact kill her child Azaria." (at p448)

I should add that the interrelation of paragraphs 18 and 19 has been the subject of adverse comment by counsel for the Crown. The evidence was not, however, countered by any from the Crown nor was the psychiatrist I have mentioned cross-examined. I can understand that, as the evidence in affidavit form was only filed when the application came on yesterday, the Crown could have been in a difficulty in meeting it. However, its tender was not objected to. (at p448)

The value of the evidence must be assessed with caution because of the limited base on which it appears to rest but I do not believe that I am in a position to disregard it or seriously discount it. I should not attempt to substitute speculations of my own. (at p448)
A well qualified psychologist, to whose evidence the same comments apply, said in par. 8, "From the results of the test and of my interview of the applicant, I am unable to detect any behavioural abnormality or pathology in the applicant". Paragraph 9, "I am of the opinion that the applicant, ALICE LYNNE CHAMBERLAIN, does not present a danger either to herself or to the child, which I understand has been born since the date of interview". (at p448)
Mrs Chamberlain breast-fed her other children and, as I understand, for at least a period of some months. Although the child just born was taken from her mother on the morning of 17 November 1982, we have been told that breast feeding could be commenced or resumed if the opportunity were given immediately. One knows that a child is sometimes permanently separated from her mother at birth. In the cases I have in mind, there will usually be foster parents or adopting parents who will love and care for the child from that time. A substituted bond will readily develop. (at p449)
In the present case, so far as appears, the child will remain the child of her parents and there will be a need for the development of a sound relationship with her mother, whether or not the latter continues to serve her sentence. It is in the interests of the community as well as the welfare of the child and the mother that this happen. The evidence is to the effect that the relationship I have mentioned will be in serious jeopardy from the outset if they are now forcibly separated. (at p449)
If the parties are ready the court can start to hear the appeal in February next, but the infant will have lived for a period which may be up to six months or so before the appeal is determined. If the appeal fails it may appear that the best course would have been for separation to have continued from birth, for separation at a later date will be inevitable. This is, however, problematical. We have no evidence touching the psychiatric or psychological consequences of such a situation. (at p449)
There is, on the other hand, evidence about the effect of immediate separation. Counsel for the Crown has told us that he is instructed that there is no prospect of mother and daughter being in contact or even of the mother seeing her daughter if the mother remains in custody pending the hearing of her appeal. This is the decision of the prison authorities. (at p449)
A concern might be thought to arise that if Mrs Chamberlain were to be released on bail she may do some harm to the newly born child, not least of all because the latter is another daughter. I am not sure that a submission in those or similar terms was made by counsel for the Crown but I will mention some matters affecting my mind in relation to the risk of such a thing happening. (at p449)
In the first place, I doubt that past conduct could give rise to an inference that it may be repeated. As I have said, the only evidence is the other way. Secondly, the likelihood of any harm occurring during the period of bail pending the hearing of the appeal would seem to be minimal. Thirdly, it would be a condition of bail that Mrs Chamberlain live at Avondale College with her husband and that she accept while on bail the supervision of a welfare or probation officer appointed for the purpose by or by arrangement with the Northern Territory authorities. This would give her assistance and constitute an additional restraint. (at p449)
The President of the College has sworn an affidavit stating the acceptability of Mrs Chamberlain returning to live at the College. If any risk remains it would seem to me to be outweighed by the other circumstances I have mentioned. (at p449)
I have found the case a difficult one but on the whole I am of the view that bail should be granted. I would wish to emphasise at the same time that this is not an act of leniency, nor does it in any way prejudge the outcome of the appeal. The central consideration in my mind is the welfare of the child in the very difficult situation into which she was born. (at p449)
I would, therefore, make an order granting bail with attendant conditions, but I will return to that matter after my brethren have expressed their views. (at p449)

JUDGE2

NORTHROP J. On 29 October 1982 in the Supreme Court of the Northern Territory of Australia at Darwin, Alice Lynne Chamberlain was found guilty by a jury of twelve persons of the murder of her nine weeks old daughter. On the same day, Mrs Chamberlain was sentenced to life imprisonment with hard labour. At present she is being held in custody at Berrimah prison in Darwin. (at p450)

On 29 October 1982 in the Supreme Court of the Northern Territory of Australia at Darwin, Michael Leigh Chamberlain, the husband of Mrs Chamberlain, was found guilty by a jury of twelve persons of being accessory after the fact of that murder but the sentence imposed upon him on 30 October 1982 has been suspended. As a result, Mr Chamberlain is not being held in custody. (at p450)
By notice of appeal dated 8 November 1982, Mrs Chamberlain and Mr Chamberlain have each appealed as of right from the judgments of the Supreme Court of the Northern Territory of Australia. The appeal is to the Federal Court of Australia. Mrs Chamberlain is seeking an order that the verdict of the jury and the judgment entered on that verdict be set aside and that the verdict of not guilty be entered. Alternatively, she seeks an order that the verdict and judgment be set aside and a new trial be granted. The appeal is likely to be heard by the Full Court of the Federal Court of Australia in the month of February 1983. (at p450)
Pursuant to notice dated 12 November 1982, Mrs Chamberlain is seeking an order that she be granted bail pending the hearing of the appeal against her conviction "upon such conditions as the Federal Court thinks fit". The order is sought pursuant to O. 52, r. 35(3) of the Rules of the Federal Court. That rule reads, "The Court or a Judge may, upon such terms as it thinks fit, admit an appellant to bail pending the hearing of his appeal or his application for leave to appeal". (at p450)
In that rule, unless a contrary intention appears, the court means a Full Court of the Federal Court of Australia, O. 52, r. 1. (at p450)
In cases of this kind, the general principle of law to be applied is that as a general rule bail will not be granted pending the hearing of an appeal except in exceptional circumstances. During the hearing of the motion, counsel referred to a large number of authorities. These have all been considered but it is necessary to refer to two decisions only, namely, R. v. Southgate (1961) 78 W.N. (N.S.W.) 44 per Sugerman J., and R. v. Kulari (1978) V.R. 276 per Sir John Young, the Chief Justice of Victoria. What are exceptional circumstances differ from case to case. The rationale of the principle, however, is clearly apparent. A jury has found the accused guilty and the accused has been sentenced to imprisonment. There remains no presumption of innocence. That sentence should be served except in exceptional circumstances. (at p450)
Counsel for Mrs Chamberlain contended that in this case there was every prospect of the verdict being set aside and this was sufficient reason for granting bail. He referred to extracts from the summing-up of the learned trial judge. That contention is completely rejected. This Court, on the material before it, cannot form any view on that matter. It would be wrong for the Court, on the material before it, to form any view on that matter. The fact of the verdict of guilty must be accepted and acted upon. I am satisfied, however, that the appeal is genuine, is bona fide, and that, on a consideration of the grounds of appeal, real questions are raised by the appeal which will require the consideration of the Full Court of the Federal Court which hears the appeal. (at p451)

In support of the motion, evidence by way of affidavit was given by Gregory Raymond Cavanagh, a barrister and solicitor acting on behalf of Mrs Chamberlain; William Louis Metcalf, a psychiatrist; Frederick Henry Smith, a psychologist; and James John Charles Cox, the President of Avondale College, a College of Advanced Education at Cooranbong in New South Wales. (at p451)
A number of facts may be mentioned and put to one side as not constituting exceptional circumstances for present purposes, namely that Mrs Chamberlain is the mother of two other children, boys - Aidan aged nine years and Regan aged six years; that Mrs Chamberlain on 3 February 1982 was committed for trial for the murder of her daughter and was released on bail pending the trial which commenced on 13 September 1982; that Mrs Chamberlain was allowed bail by the trial judge during the several weeks of the trial; that between her committal for trial and the commencement of the trial Mrs Chamberlain resided at Avondale College with her husband and her two sons; that she has no prior convictions and does not possess a passport and that she desires to live with her family at Avondale College pending the hearing of her appeal. None of these facts, severally or collectively, constitutes exceptional circumstances sufficient to justify the granting of bail pending the hearing of the appeal. Similar facts apply in many cases where a first offender appeals from his conviction. (at p451)
The additional facts which are said to constitute exceptional circumstances are summarised as follows: On 17 November 1982 Mrs Chamberlain was delivered of a daughter. By administrative decision of the relevant authorities in the Northern Territory, that daughter has been taken from Mrs Chamberlain and she is not to have possession of that daughter while she is in custody. There is medical evidence which, although in some respects unsatisfactory, I am prepared to accept, namely, that apart from reactive depression arising from the decision to have her daughter separated from her, Mrs Chamberlain is not suffering from any, nor has she suffered from any, identifiable psychiatric disorder; that if the infant child is removed from her there will be an absence of psychological bonding between Mrs Chamberlain and her daughter which would have an adverse psychological effect on both mother and child with the major effect on the child; that Mrs Chamberlain presents as a caring mother genuinely concerned for the welfare of the child; that she would not harm the child; that no behavioural abnormality or pathology could be detected in Mrs Chamberlain and that she does not present a danger either to herself or to the child. (at p451)
On the facts of this case there are a number of incongruities and imponderables. It is incongruous that Mrs Chamberlain, having been convicted of the murder of her nine weeks old daughter, is seeking bail so that she can mother a newly born daughter. The imponderables include the fact that the result of the appeal is unknown. If bail is granted but the appeal is lost, the separation between the mother and child will, in all probability, take place with all the disabilities already mentioned then occurring. If the appeal is successful and a new trial ordered there can be no certainty as to what will eventuate. (at p451)
There can be no doubt that the facts of this case are unusual but that of itself does not constitute exceptional circumstances. (at p452)
Considering all the facts and all the submissions of counsel for Mrs Chamberlain and of counsel for the Crown I have formed the opinion that the special circumstances of this case do constitute exceptional circumstances justifying the granting of bail pending the hearing of the appeal and that the Court should exercise its discretion to grant bail. Nevertheless, bail should be granted on terms that Mrs Chamberlain observe a number of conditions. If she is not prepared to observe those conditions bail should be refused. The proposed conditions together with some comments will be announced later by the presiding judge. (at p452)

JUDGE3

LOCKHART J. A person charged with a criminal offence is presumed innocent until proved guilty. Hence, before trial, bail is not infrequently granted. Although many other considerations are relevant than the presumption of innocence, it is well established that bail will not be granted pending the hearing of an appeal from a conviction and a sentence of imprisonment unless there are special circumstances. There are no inflexible rules as to what constitutes special circumstances. Ultimately, it is for the court to determine on the facts of each case. (at p452)

The appellant, Alice Lynne Chamberlain, was convicted by a jury of twelve of the crime of murder of her baby daughter, Azaria. A sentence of life imprisonment was imposed as required by the law of the Northern Territory. The appellant was convicted after a lengthy trial which in turn followed earlier proceedings before magistrates. The trial of the appellant and of her husband attracted publicity on a scale never witnessed before in this country. (at p452)
The very exposure by the media of this case, including its most intimate details, to the eyes of Australians and others round the world emphasises the need for this application for bail to be decided calmly, impartially and in accordance with established principles. (at p452)
The principles which govern the fate of other Australians who apply for bail pending the hearing of appeals from their convictions for criminal offences must apply in this case. There is no different law for those who happen to attract the glare of great publicity. (at p452)
The prospects of the appellant's success on the appeal from her conviction and sentence are relevant considerations. Much has been said about them by her counsel and by counsel for the Crown. I do not propose to review those submissions. It is undesirable, if not impossible, for this Court to form a view at this stage on the appellant's prospects of success in her appeal. All I will say is that there is no certainty of success or of failure. Some points appear to be fairly arguable. (at p452)
This is a case of murder. No other case in the legal history of this country has given rise to so many diverse views as to what really happened. In the midst of all this uncertainty one thing is clear, namely, that a jury of twelve Australians unanimously found the appellant guilty of the murder of her infant daughter. That verdict is the subject of an appeal to this Court. It may stand or fall. No-one knows. For the purposes of this application for bail pending the hearing of the appeal, the conviction of the appellant for murder must be treated as standing. (at p452)
It is more likely that bail will be granted pending an appeal from a conviction for a less serious offence or if the sentence appealed from is short or if substantial delay will occur before the appeal is heard. None of these considerations apply here. The conviction is for murder. The sentence is life imprisonment. The appeal may be heard without undue delay. If the appellant is released on bail she has offered, through her solicitor, to accept as a condition of bail that she will stay with her family at the Seventh Day Adventist Church residential college at Cooranbong, New South Wales, and will not leave it except to report to the police if required by this Court. I have no reason to doubt that the appellant will observe this condition. (at p453)
There is only one feature that distinguishes this application for bail from others and it is a novel and sensitive one. A baby girl was born two days ago to the appellant and her husband. If her application for bail is refused it seems that she will not be allowed by the relevant authorities in Darwin to look after her baby whilst she remains in prison. (at p453)
If her appeal succeeds there may be or may not be a new trial. If the appeal fails the appellant will remain convicted of murder and may spend substantial time in prison. (at p453)
It is impossible therefore to determine for how long mother and baby daughter will be separated. (at p453)
There is some evidence before us as to the likely or possible effects upon the appellant and her baby by the continuation of the present departmental policy in the Northern Territory of separating the mother from her baby in this case. No clear or reliable picture emerges except that there may be difficulties in the future so far as the psychological bond between mother and child is concerned. This is a delicate matter and must be given due weight. But in my view it would be speculative to try and assess in any reliable or convincing way the impact which these proceedings and the separation of mother and daughter may have upon either of them. (at p453)
One thing should be made clear. The decision to separate mother and child immediately after birth was made by the relevant authorities in the Northern Territory, not by this Court. We have no power to deal with such matters. Nor should we express any views about that decision. In reality this is an application to appeal from that administrative decision. (at p453)
The essential ground relied upon by the appellant to support the grant of bail is that it will enable her to care for her baby daughter. I do not suggest for one moment that any harm is likely to befall this newly born child, but it strikes me as somewhat odd and incongruous that a person convicted of murdering her baby daughter should be able to obtain bail on the ground that she wishes to nurture her next born child, also a baby daughter. (at p453)
A jury of nine men and three women unanimously convicted the appellant of the crime of murdering her child. The task of the learned trial judge and jury under the gaze of large publicity was long and agonising, but the appellant was convicted of one of the most serious crimes known to Australian law. (at p453)
The humanitarian considerations that arise in this case do not make that decision easy but I am not persuaded that in the end they support the granting of bail. (at p453)
We have been informed by counsel that there is no previous case of a person convicted of murder in the Northern Territory being allowed bail pending the hearing of the appeal. I am not satisfied that this case should be the first. (at p454)
I would dismiss the application for bail. (at p454)
Although I disagree with the other members of the Court as to whether bail should be granted, I agree with the form of the orders which the learned presiding judge will read soon and with the observations which he proposes to make relating to these orders. (at p454)

ORDER

The Court orders that:

1. Alice Lynne Chamberlain, the appellant, be released on bail pending the determination of her appeal, on entering into a recognizance in the sum of $300 with one surety of $300. Bail is subject to the following conditions:
(a) that she reside with her family at Avondale College, Cooranbong;
(b) that she accept the supervision of a welfare or probation officer appointed by or by arrangement with the relevant authorities in the Northern Territory; and (c) that she report once weekly to the officer from time to time in charge of the Police Station at Morisset in New South Wales.

2. The recognisance be taken before a magistrate in the Northern Territory of Australia.

3. Liberty to the Crown to apply on the basis of an observation made jointly by the Court:

The trial has attracted much publicity. Mrs Chamberlain should be isolated from the media in the same way as if she were in custody while her appeal is pending in the Federal Court of Australia. Publicity arising from or associated with interviews or attempted interviews with her by members of the media could amount to contempt of Court and otherwise create embarrassment, and should be avoided. If a serious problem arises in this connection the Crown has liberty to apply for appropriate variations of the order now made.

Orders accordingly.

[1982] FCA 252

19 NOVEMBER 1982