Chamberlain v The Queen

[1983] FCA 74

Re: ALICE LYNNE CHAMBERLAIN and MICHAEL LEIGH CHAMBERLAIN
And: THE QUEEN (1983) 72 FLR 1
No. NTG 23 of 1983
Criminal Law - Appeal - Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Forster(1) and Jenkinson(2) JJ.

CATCHWORDS

Criminal Law - Appeal against conviction for murder and conviction for being accessory thereto - Whether verdicts against the evidence and the weight of the evidence - Directions regarding conflicting expert evidence - Directions regarding circumstantial evidence.

Appeal - Motion to strike out some grounds of appeal - Application for leave to tender further evidence.

Federal Court of Australia Act 1976 ss. 24, 27 and 28.

Northern Territory supreme Court Act 1961 s, 47.

Rules of Court - Order 56 r. 18(1).

Criminal Law - Appeal against conviction for murder - Appeal against conviction as accessory after the fact of murder - Whether verdicts against the evidence and the weight of the evidence - Whether verdicts were unsafe, unsatisfactory or dangerous in the administration of justice - Whether unsafe to let case go to jury - Whether jury should have been advised that it was unsafe to convict - Whether jury could properly reach verdicts after considering whole of evidence - Whether jury was entitled to ask how blood came to be in car - Whether certain direction to jury was unwise - Whether defence case was fairly put to jury in summing up - Whether miscarriage of justice.

Appeal - Motion to strike out certain grounds of appeal - Application to tender further evidence - Whether verdicts against the evidence and the weight of the evidence.

Practice and Procedure - Appellate jurisdiction of Full Court - Power of Full Court to intervene - Precedent - Application to tender further evidence at appeal hearing - Evidence - Directions to jury concerning conflicting expert evidence - Whether verdicts against the evidence and the weight of the evidence - Standard of proof - Reasonable doubt - Federal Court of Australia Act 1976 (Cth), ss 24, 27, 28 - Northern Territory Supreme Court Act 1961 (Cth), s. 47 (repealed) - Federal Court Rules O. 52, r. 18(1). O. 52, r. 36.

HEADNOTE

Section 24 of the Federal Court of Australia Act 1976 (Cth) provides, inter alia, that the court has jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory and s. 27 of that Act provides as follows:

"In an appeal, the court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence. . . ."

Section 28 of the above Act provides, inter alia, as follows:

"(1) Subject to any other Act, the Court may, in the exercise of its

appellate jurisdiction -

(e) set aside the verdict and judgment in a trial on an indictment and order a verdict of not guilty or other appropriate verdict to be entered;

(f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial;...

The appellants appealed to the Full Federal Court of Australia against their convictions following the verdicts of a jury which were returned in the Supreme Court of the Northern Territory of Australia on 29 October 1982.

The first appellant was found guilty of the murder of her child, Azaria, and the second appellant was found guilty of being an accessory after the fact of that murder.

At the hearing of the appeal, the Crown, by notice of motion; pursuant to O. 52, R. 18(1) of the Federal Court Rules, sought to strike out five of the twenty-three grounds of appeal specified in the appellants' notice of appeal "as being incompetent and not grounds known to the law". An application was made on behalf of the appellants pursuant to O. 52, r. 36 of the Federal Court Rules to tender further evidence at the hearing of the appeal. The court deferred its decision on the preliminary questions raised and heard argument on the appeals, including argument on the basis that the challenged grounds were still in the notice of appeal.

The five challenged grounds of appeal were as follows:

"Ground 3: The learned trial judge erred in rejecting submissions by

counsel for each of the accused that at the end of the evidence the case
against each of the accused was so tenuous that even with a proper direction
it would be unsafe to let the case go to the jury.

Ground 4: The learned trial judge erred in rejecting submissions by

counsel for each accused that the jury be advised at the conclusion of the
evidence that it was unsafe to convict either accused.

Ground 5: The verdict (sic) was (sic) against the evidence and the weight

of the evidence.

Ground 6: The verdicts of guilty against each accused are -

(a) unsafe and/or unsatisfactory;

(b) dangerous in the administration of justice;

(c) dangerous or unsafe in the administration of the criminal law....

Ground 22: That the learned trial judge should not have permitted the

Crown case to go to the jury in so far as same related to evidence
adduced by the Crown concerning blood samples. . . ."

Grounds 1 and 23 were abandoned, ground 7 was formal, grounds 10 and 11 were not argued, and the remaining thirteen grounds of appeal were as follows:

"Ground 2: The learned trial judge erred in rejecting submissions by

counsel for the second appellant that the jury should be directed as
a matter of law to find him not guilty in that the jury properly directed
should not on the evidence convict him.

Ground 8: That his Honour erred in law in directing the jury as to the

appropriate standard of proof and as to what constituted a reasonable doubt.

Ground 9: That his Honour misdirected the jury in law by instructing them

that, if the Chamberlains' evidence left them to conclude that there was a
reasonable possibility that they were not guilty, they were to act on that.

Ground 12: That the trial judge misdirected the jury in law by informing

them that merely because they could not fully understand the techniques
and methods employed in modern scientific research did not mean that they
could not act on the evidence resulting from such scientific inquiry.

Ground 13: That the trial judge erred in law in instructing the jury

that in the long run it would depend on their assessment of the scientific
witnesses "as to how he or she appealed to you".

Ground 14: That the trial judge misdirected the jury by instructing

them that, even if they had doubt as to whether foetal blood found in
the family car was foetal blood, they were still entitled to ask how the
blood came to be there.

Ground 15: That the trial judge misdirected the jury in law in relation to

the evidence of the appellants by instructing them that it was not the
sanctity of the oath which in these days weighed heavily but the fact
that they had exposed themselves to cross-examination.

Ground 16: That the trial judge erred in law in not putting the sworn

evidence of the accused to the jury (in summing up).

Grounds 17, 18 and 19: That his Honour erred in law in admitting

the evidence of certain witnesses.

Ground 20 concerned evidence which could be given by a certain

witness at the trial, which was said to be "fresh" evidence.

Ground 21: The learned trial judge erred in relation to his charge to the

jury in that he failed to issue (certain) warnings that in respect to the
evidence concerning blood samples. . . ."

Held, per curiam - (1) Order 52, rule 18(1) of the Federal Court Rules is appropriate in the case of a motion for an order dismissing an appeal. It is not directed to the striking out of particular grounds leaving the appeal on foot. Accordingly, the motion would be dismissed.

(2) (a) In relation to ground 3, in the present case, there were conflicts between a substantial body of evidence for the Crown and a substantial body of evidence for each of the accused. It would have been wrong for the learned trial judge to have taken the matter away from the jury.

(b) There would appear to be no warrant for adopting the English practice of withdrawing a case from the jury at the close of the Crown's case in the Northern Territory.

(3) In relation to ground 4, the question (of) what evidence should be accepted is pre-eminently a question for the jury. The learned trial judge was correct in leaving the matter to the jury and in refraining from giving any such advice (that it was unsafe to convict).

(4)(a) In relation to ground 5, it is within the power of the Full Court of the Federal Court of Australia under ss 24, 27 and 28 of the Federal Court of Australia Act 1976 to act upon such a ground in an appropriate case. P

Per Jenkinson J. - Semble, this Court might without error apply the underlying principles and so adapt the more particular rules which shaped those grounds (upon which a new trial may be granted after judgment entered upon a jury verdict) so as to enable this Court to examine a jury's verdict of guilty for error of fact and to provide an appropriate remedy where error is found by reference to substantially the same criteria as have been established by the High Court under the common form statutes.

(b) It would be wrong to hold that the verdict against either appellant was one which viewing the whole of the evidence reasonably the jury could not properly find. Accordingly, ground 5 would be rejected.

Per Jenkinson J. - As a matter of terminology the expression "against the evidence" should . . . be reserved for a contention that a verdict for the party on whom the burden of proof does not lie should be set aside and a new trial ordered on the ground that all the evidence was the other way; and the expression "against the weight of evidence" should be reserved for a contention that upon conflicting evidence the verdict was one which a tribunal of fact could not reasonably find.

Mount Bischoff Tin Mining Co. v. Mount Bischoff Extended Tin Mining Co. (N.L.) (1913) 15 CLR 549; Hocking v. Bell (1945) 71 CLR 430; Raspor v. R. (1958) 99 CLR 346; Conlon v. Divis (1967) 2 NSWR 6, referred to.

Per Jenkinson J. - The jury might, in reliance upon expert evidence of scientific opinion, reasonably have found, on a balance of probability, that matter from the car and articles associated with the car which Mrs Kuhl had tested contained foetal haemoglobin. But no such finding could have been reasonably made beyond reasonable doubt. Those means of evaluating evidence which the jury enjoys by hearing and watching witnesses, and which are denied an appellate tribunal, could not . . . have enabled the jury reasonably to have eliminated the doubt, as to whether matter tested contained foetal haemoglobin, which a careful consideration of the transcript of evidence and the exhibits raises in the mind . . . no juror could reasonably have failed to acknowledge that, reason as he might, he was not in a position to assure himself of the correctness of a conclusion against the opinions of the two professors to the degree which would eliminate reasonable doubt as to that conclusion. P

Per Bowen C.J. and Forster J. - Before a jury can properly convict they are required when considering the evidence as a whole to be satisfied beyond reasonable doubt as to the guilt of the accused, even though they may not be so satisfied on every evidentiary issue that goes to make up the Crown case as a whole.

R. v. Exall (1866) 4 F & F 922; 176 ER 850. R. v. Van Beelen (1973) 47 ALJR 666; Thomas v. R. (1972) NZLR 34, referred to.

(5) In relation to ground 6, although the court was not regarded as being bound by its previous decisions, the court would normally follow an earlier decision unless convinced that it was wrong. Hence, it was not open to the appellant to argue that it was "unsafe" or "unsatisfactory" to allow the verdict to stand.

Duff v. R. (1979) 39 FLR 315; Erich v. R. (1980) 31 ALR 123, applied.

Collins v. R. (1980) 31 ALR 257, referred to.

Per Jenkinson J. - Observations concerning the scope of review afforded by the grounds upon which a new trial may be granted after judgment entered upon a jury verdict, discussed.

(6) In relation to ground 22, for the learned trial judge to have withdrawn the issues concerning blood samples would have been an impermissible intrusion by the judge into the functions of the jury so that it was not a tenable ground of appeal.

(7) Accordingly, the motion to strike out grounds of appeal numbered 3, 4, 5, 6 and 22 would be dismissed.

(8) (In the exercise of its discretion under s. 27 of the Federal Court of Australia Act 1976) the court would refuse leave to tender further evidence on the appeal as it was not "fresh" evidence in the accepted sense and the proposed evidence lacked cogency in the relevant sense.

Ratten v. R. (1974) 131 CLR 510; Lawless v. R. (1979) 142 CLR 659, applied.

(9) In relation to ground 2, there being substantial evidence for the Crown and substantial evidence for the accused, it was for the jury to decide what evidence they accepted and it would have been wrong for the trial judge to have given the direction suggested.

(10) In relation to grounds 8 and 9, the jury could not have been misled by the reference to innocence in the context of the entire summing up, and it should also be noted that defence counsel at the trial sought no redirection. Accordingly, grounds 8 and 9 failed.

La Fontaine v. R. (1976) 136 CLR 62, referred to.

(11) In relation to grounds 12 and 13, the jury had been told that it was not necessary for it to fully understand the methods (and techniques employed in modern scientific research) in the way that another scientist would, but nevertheless if it had a doubt as to methodology or did not understand the conclusions it must not act upon them. Accordingly, grounds 12 and 13 would be rejected.

(12) In relation to ground 14, whether or not the human blood found in the car could be that of the child Azaria, it did not seem to be in any way a misdirection to tell the jury that it was still entitled to ask how the blood came to be there. Accordingly, ground 14 would be rejected.

(13) In relation to ground 15, although the learned trial judge's observation was an unwise mistake it would not have had any prejudicial effect on the minds of the members of the jury. Accordingly, ground 15 would be rejected. $P

(14) In relation to ground 16, the defence case was fully, fairly and accurately put. Accordingly, ground 16 would be rejected.

(15) Grounds 17, 18, 19 and 21 would be rejected and it was unnecessary for the court to deal with ground 20.

Per Bowen C.J. and Forster J. - In relation to grounds 8, 9, 10, 12, 13, 14, 15, 16, 17, 18 and 19, the failure of counsel at the trial to seek a redirection, some amendment or addition to the summing up and his failure to object to the admissibility of evidence, . . . carried a strong suggestion that, in the atmosphere of the trial at which he was present, no miscarriage of justice occurred or was likely to occur because of matters later complained of.

Taylor v. R. (1978) 45 FLR 343; Jones v. Dunkel (1959) 101 CLR 298; La Fontaine v. R. (1976) 136 CLR 62; R. v. Lavery (No.2) (1979) 20 SASR 430, referred to.

(16) Accordingly, both appeals would be dismissed.

HEARING

Darwin, 1983, February 7; March 3; April 29. #DATE 29:4:1983

M.H. McHugh Q.C. and C.T.W. Miller, for the appellants.

I. McC. Barker Q.C. and T.I. Pauling, for the respondent.

Cur. adv. vult.

Solicitors for the appellants: Brennan & Blair.

Solicitor for the respondent: Crown Solicitor for the Northern Territory.

ORDER

1. The motion to strike out grounds of appeal numbered 3, 4, 5, 6 and 22 be dismissed.

2. The appeals be dismissed.

3. James John Jolliffe, Sheriff of this Court, take Alice Lynne Chamberlain into his custody and deliver her to Superintendent Frederick Mercer, Officer in Charge, Darwin Prison, Berrimah in the Northern Territory, as soon as this can conveniently be arranged by the Sheriff.

Orders accordingly. J.D.W.

JUDGE1

Appeals against conviction by two persons, each of whom was convicted in a trial on an indictment by a judgment of the Supreme Court of the Northern Territory of Australia. The appellant Alice Lynne Chamberlain was convicted upon the verdict of a jury that she was guilty of murdering Azaria Chantel Loren Chamberlain on 17 August 1980 at Ayers Rock; and the appellant Michael Leigh Chamberlain was convicted, upon the verdict of that jury, of having been accessory after the fact of that murder.

2. Alice Lynne Chamberlain was born on 4 March 1948. Michael Leigh Chamberlain was born on 27 February 1944. They were married on 18 November 1969. There was issue of the marriage three children : a son named Aiden who was born on 2 October 1973; a son named Reagan who was born on 16 April 1976; and the daughter Azaria, who was born on 11 June 1980, and of whose murder Mrs. Chamberlain is now convicted. On 13 August 1980 the appellants and their three children left their home at Mt. Isa in their motor car, on a holiday journey to Central Australia. On 16 August they arrived at Ayers Rock, where they pitched their tent next to the car in a camping area several kilometres east of Ayers Rock. On the following day they visited Ayers Rock and later watched the setting of the sun. Then they returned to their tent. There were cooking facilities for campers about 20 metres west of the tent. Other campers and the Chamberlains were near those facilities at about 8 o'clock in the evening when Mrs. Chamberlain carried the child Azaria towards her tent, accompanied by the boy Aiden. The child Azaria was then alive, it was common ground at the trial. No witness claimed at the trial to have ever seen Azaria again, except Mrs. Chamberlain. The boy Aiden did not give evidence. Mrs. Chamberlain gave evidence that she carried her sleeping daughter into the tent and placed her in a basket and covered her with blankets; that Aiden was in the tent with them and was getting into his sleeping bag; that he asked for more food and that she and Aiden returned to the place where the adults were, near the cooking facilities; and that she left Azaria and Reagan sleeping in the tent. Reagan had been put to bed there some time earlier. A short time later Mr. Chamberlain said that he thought he had heard Azaria cry. Mrs. Chamberlain walked from the group of adults towards the tent. Then she called out an alarm. The child Azaria was not in the tent. Reagan was apparently still asleep. Mrs. Chamberlain gave evidence that her cry followed her sighting a dingo at the entrance of the tent.

3. Only two hypotheses were proposed to the jury and to this court in respect of the disappearance of Azaria. The appellants and their counsel advanced the hypothesis that a dingo had seized the sleeping child from the basket and had carried her away. The Crown adduced evidence of circumstances, and of expert opinion concerning some of those circumstances, which in the submission of the Crown established beyond reasonable doubt that while Mrs. Chamberlain and her three children had been alone in the vicinity of the tent before she and Aiden returned to the other adults, Mrs. Chamberlain had inflicted mortal wounds to Azaria's throat with a cutting instrument; and that after Mrs. Chamberlain had raised the alarm Mr. Chamberlain had aided her in disposing of the child's body, he then knowing that his wife had caused the child's death. The circumstances of which the Crown essayed proof were numerous and diverse in kind. Evidence for the appellants in contradiction of the Crown proofs, both as to circumstances and of expert opinions, was very substantial. The trial occupied more than 6 weeks; the appeal was heard during 16 days.

4. On the hearing of the appeal Mr. Barker Q.C., who appeared with Mr. Pauling of counsel for the respondent Crown, submitted that 5 of the 23 grounds of appeal specified in the appellants' notice of appeal were unavailable to an appellant to this Court from judgment of conviction in a trial on indictment upon a jury's verdict. The submission was founded upon the reasoning of the Full Court of this Court in Duff v. R. (1979) 28 A.L.R. 663. (See also Erich v. R. (1980) 31 A.L.R. 123.) The submission and the reasoning of the Full Court in that case were addressed primarily to the provisions of Division 2 of Part III of the Federal Court of Australia Act 1976. But there are other provisions of that Act which may be relevant to a determination of the questions which the submissions of the Crown raise.

5. Part II of the Act has for a heading the words: 'Constitution of the Federal Court of Australia.' The first section of Part II provides:

'5. (1) A federal court, to be known as the Federal Court of Australia, is created by this Act.

(2) The Court is a superior court of record and is a court of law and equity.

(3) The Court consists of a Chief Judge and such other Judges as from time to time hold office in accordance with this Act.'

Part II contains no provision by which jurisdiction is conferred on the Court. Part III has the heading : 'Jurisdiction of the Court.' Division 1 of that Part is concerned with the Court's original jurisdiction. The heading of Division 2 is : 'Appellate and related Jurisdiction.' The first section in that Division provides:

'24. (1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine _

(a) appeals from judgments of the Court constituted by a single Judge;

(b) appeals from judgments of the Supreme Court of a Territory; and

(c) in such cases as are provided by any other Act, appeals from judgments of a court of a State, other than a Full Court of the Supreme Court of a State, exercising federal jurisdiction.

(2) On or after the commencing day an appeal shall not be brought to the High Court from a judgment of the Supreme Court of a Territory except _

(a) in accordance with special leave given by the High Court on or after the commencing day; or

(b) in accordance with leave or special leave given by the High Court or the Supreme Court before the commencing day.

(3) Subject to sub-section (4), an appeal does not lie to the Court from a judgment of the Supreme Court of a Territory given before the commencing day.

(4) Where, immediately before the commencing day, a person has a right to appeal (otherwise than in accordance with leave or special leave referred to in sub-section (2)), or to seek leave or special leave to appeal, to the High Court from a judgment of the Supreme Court of a Territory given before the commencing day, that right is, by force of this section, converted into a corresponding right to appeal, or to seek leave or special leave to appeal, to the Court.

(5) A reference in this section to the Full Court of the Supreme Court of a State shall be read as a reference to the Supreme Court of a State when constituted by 2 or more judges, and includes the Supreme Court of a State when so constituted for the purpose of sitting as the Court of Appeal of the State.'

The expression 'the commencing day' was defined to mean the day, to be fixed by proclamation, on which this Court should commence to exercise its jurisdiction: ss.2(2), 4. Some of the provisions of s.25 should be considered:

'(1) The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court.

(3) Except where the Chief Judge considers it impracticable for the Court to be so constituted, a Full Court of the Court for the exercise of jurisdiction in an appeal from a judgment of the Supreme Court of a Territory shall include at least one Judge who holds office as a Judge, other than an additional Judge, of the Supreme Court of that Territory.

(4) The jurisdiction of the Court in an appeal from a judgment of the Supreme Court of a Territory constituted by 2 or more Judges shall be exercised by a Full Court of the Court constituted by not less than 5 Judges."

Section 26 authorises a court from which appeals lie to this Court to state a case or to reserve any question, concerning a matter with respect to which such an appeal would lie from that court, for the consideration of this Court; and prohibits such a court from stating a case or reserving such a question to any court other than this Court; and confers on this Court jurisdiction to hear and determine a case or question so stated or reserved. Sections 27 and 28 are in these terms:

'27. In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken on affidavit, by oral examination before the Court or a Judge or otherwise in accordance with section 46.

28.(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction _

(a) affirm, reverse or vary the judgment appealed from;

(b) give such judgment, or make such order, as, in all the circumstance it thinks fit, or refuse to make an order;

(c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;

(d) set aside a verdict or finding of a jury in a civil proceeding, and enter judgment notwithstanding any such verdict or finding;

(e) set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered;

(f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or

(g) award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.

(2) It is the duty of a court to which a cause is remitted in accordance with paragraph (g) of sub-section (1) to execute the judgment of the Court in the same manner as if it were its own judgment.

(3) The powers specified in sub-section (1) may be exercised by the Court notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision.

(4) An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just.

(5) The powers of the Court under sub-section (1) in an appeal (whether by the Crown or by the defendant) against a sentence in a criminal matter include the power to increase or decrease the sentence or substitute a different sentence.'

The word 'judgment' is defined to mean 'a judgment, decree, or order, whether final or interlocutory, or a sentence': s.4.

6. In the reasons for judgment of the Full Court in Duff's Case it was observed (28 A.L.R. at 672-673):

'The grounds upon which the criminal appellate jurisdiction of the Federal Court might be exercised were not specified in the drafting of s.24 of the Federal Court of Australia Act. Indeed, the nature of its appellate powers can be ascertained only by reference to other sections of the Act, especially ss. 27 and 28. Those sections make it clear that the appellate powers are not limited to the hearing and determination of an appeal in the strict sense. The power to draw inferences of fact and to receive further evidence (s.27), the power to set aside a jury verdict (s.28(1)(e)) and the power to grant a new trial (s.28(1)(f)) extend the powers beyond those which may be exercised on a strict appeal: see Musgrove v. McDonald, supra; Commonwealth v. Brisbane Milling Co. Ltd., supra; and Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan (1931) 46 C.L.R. 73. But the absence of specified grounds governing the exercise of the court's appellate powers marks a radical departure from the usual legislative provision creating a criminal appellate jurisdiction, in which: 'the grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed' (per Dixon J. in Grierson v. R. (1938) 60 C.L.R. 431 at 436). The statement of grounds is a logical step in the creation of criminal appellate jurisdiction, for an appeal is not a common law remedy, and grounds or principles must be established to govern the power to interfere with a verdict and judgment of the court of trial.

Clearly enough, the grounds upon which this court may exercise its powers are not restricted to those which govern the determination of a strict appeal, for the grounds must be appropriate to the appellate power the exercise of which is sought in the appeal."

No criticism of those observations was expressed by counsel for any party to this appeal. The joint judgment of Brennan, McGregor and Lockhart JJ. in Duff's Case continued thus (28 A.L.R. at 673-674):

'Where an application for a new trial is made, the grounds upon which new trials are granted after judgments entered upon jury verdicts govern the determination of the application. At common law, there was jurisdiction to grant a new trial after a conviction (R. v. Berger (1894) 1 Q.B. 823), though the availability of the remedy was limited to some classes of convictions for misdemeanours (Stephen, H.C.L.i, 310; R. v. Bertrand (1867) L.R.1 P.C. 520; and see 84 L.Q.R. at 202ff). The grounds available in applications for a new trial after a jury verdict are the grounds which are appropriate for consideration when an application under s.28 (1)(f) is made. That paragraph empowers the court to grant a new trial 'on any ground upon which it is appropriate to grant a new trial', and as that paragraph does duty for both criminal and civil appeals, it must be taken to refer to the grounds upon which the verdict may be set aside, and not merely to the considerations which a court of criminal appeal takes into account in electing between or quashing of a conviction simpliciter, and an order for a new trial. No doubt, when the court in a criminal appeal determines to set aside a verdict, the provisions of s.28(1)(f) then require that the grounds for election between the two courses be considered as a further question (see R v. Wilkes (1948) 77 C.L.R. 511 at 518; Reid v. R (1979) 2 All E.R. 904 (P.C.)), but the grounds to which the paragraph refers include the grounds upon which the court determines to interfere with the conviction.

The appropriateness of the common law rules as to the granting of new trials appears implicit in the judgment of the High Court in Stokes v. R. (1960) 105 C.L.R. 279, an appeal against a conviction on indictment before the Supreme Court of the Australian Capital Territory. The court (Dixon C.J., Fullager and Kitto JJ.) wrote (at 284-5): 'in the end we think the decision of the application must depend upon the general rule that if an error of law or a misdirection or the like occurring at the trial is of such a nature that it could not reasonably be supposed to have influenced the result a new trial need not be ordered. The rule applies, we think, in an appeal under s.52 of the Australian Capital Territory Supreme Court Act 1933-1959.'

The 'error of law...misdirection or the like occurring at the trial' is a reference to the variety of grounds upon which a new trial may be ordered, and the qualification to be found in the phrase 'could not reasonably be supposed to have influenced the result' is a reference to the qualifying rule in the form in which it stood at common law, prior to the Judicature Act (see Balenzuela v. De Gail (1959) 101 C.L.R. 226, per Dixon C.J. at 234-5).

The criteria for setting aside a jury verdict which are furnished by the new trial grounds are equally appropriate to govern the exercise of the power to set aside a jury verdict and to substitute another verdict under s. 28(1)(e). It would be anomalous if the grounds for setting aside a verdict and judgment varied according to the relief which was sought or allowed. In Stokes, supra, the High Court thought it appropriate to apply the new trial grounds to all appeals under s.52 of the Australian Capital Territory Supreme Court Act, not merely to applications for a new trial under s.36 of the Judiciary Act.

The grounds of appeal under the common statutory form (as to which, see Raspor v. R. (1958) 99 C.L.R. 346 at 350-2: Plomp v. R. (1963) 110 C.L.R. 234 at 244-7: (1964) A.L.R. 267 at 270-2: Ratten v. R. (1974) 131 C.L.R. 510 at 514-6: 4 A.L.R. 93 at 97-8: Driscoll v. R. (1977) 137 C.L.R. 517 at 524-7: 15 A.L.R. 47 at 53-6) are not to be taken as identical with the new trial grounds of appeal. The judgments of a court acting under the common form statute cannot be unquestioningly applied by this court acting under powers differently formulated (see Ratten, supra, at the pages cited).'

7. One of the grounds of appeal included in the appellants' notice of appeal commences in these terms:

'6. The verdicts of guilty against each accused are

(a) unsafe and/or unsatisfactory;

(b) dangerous in the administration of justice;

(c) dangerous or unsafe in the administration of the criminal law.'

The rest of paragraph 6, which it is unnecessary for present purposes to reproduce, consists of a summary of some of the many and diverse circumstances which the author of the notice of appeal asserts to be against a conclusion of the appellants' guilt. The phrases which are the predicates of the sentence I have quoted from that paragraph are the legal jargon in which it is customary to label a particular ground of appeal against conviction on a jury's verdict in the States of the Commonwealth, appellate criminal jurisdiction in each of which is regulated by a statutory provision conveniently described in Duff's Case as 'the common form statute'. The origin, and something of the substance, of the common form statutes were stated in the joint reasons for judgment in Duff's Case (28 A.L.R. at 671-672):

'The powers of a court of criminal appeal to set aside a jury verdict turn upon the statute creating the appellate jurisdiction (see Ratten v. R. (1974) 131 C.L.R. 510 per Barwick C.J. at 514-6; 4 A.L.R. 93 at 97-8). The Australian States adopted a common form statute governing appeals against criminal convictions. The common form follows an English paradigm, s.4(1) of the Criminal Appeal Act 1907:

'The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

'Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.'

Although the common Australian form is not materially different from this provision, there used to be a difference between the powers of the English Court of Criminal Appeal and the powers of the Australian State Courts of Criminal Appeal. The English court was not given power to order a new trial, and the common form statute of the Australian States invariably granted that power (Western Australia: Criminal Code s.689 (introduced 1 January 1912); New South Wales: Criminal Appeal Act of 1912 s.8 (now Criminal Appeal Act, 1912 s.8): Queensland: The Criminal Code Amendment Act of 1913 ss. 3 and 11 (now Criminal Code s.669); Victoria: Criminal Appeal Act 1914 s.4 (now Crimes Act 1958 s.568); Tasmania: Criminal Code Act 1924 s.404; South Australia: Criminal Appeals Act 1924 s.6 (now Criminal Law Consolidation Act 1935 s.353)). The difference in powers may have effected some variation in the practices of the Australian and English courts (see Davies and Cody v. R. (1937) 57 C.L.R. 170 at 179-81), but in all of those courts the appellate jurisdiction was exercised on grounds which were not narrowly confined. In more recent times, the English Court of Appeal has been granted power to order a new trial-in limited classes of cases by the Criminal Appeal Act 1964, and more generally by the Criminal Appeal Act 1968. In 1966, moreover, the Criminal Appeal Act of that year amended the appellate powers of the court, and that amendment has led to the exercise of even wider powers by the Court of Appeal and by judges presiding over jury trials: see Stafford v. Director of Public Prosecutions (1974) A.C. 878; (1973) 3 All E.R. 762; R. v. Mansfield (1977) 1 W.L.R. 1102; (1978) 1 All E.R. 134.

Under the common form statute, the appellate jurisdiction may be exercised whenever the court is of opinion that a miscarriage of justice has occurred _ 'the greatest innovation made by the Act', as Isaacs J. said in Hargan v. R. (1919) 27 C.L.R. 13 at 23 _ and the grounds of appeal extend beyond the errors of law which, before 1907, founded the intervention of the Court of Crown Cases Reserved in England or the exercise of a like jurisdiction by Australian courts when a trial judge reserved a point of law for consideration (see Raspor v. R. (1958) 99 C.L.R. 346 at 350)."

In the Northern Territory as in the Australian Capital Territory appellate criminal jurisdiction has been otherwise ordered. It is instructive to quote again the reasons of the Full Court for judgment in Duff's Case (28 A.L.R. at 672) :

'The statutory history of the jurisdiction in criminal appeals from the Supreme Court of the Australian Capital Territory is quite different from the statutory history of jurisdiction in criminal appeals in the Australian States or in England. Appeals from convictions entered upon jury verdicts in the Supreme Court of the Australian Capital Territory have not been governed by the common form statute, and miscarriage of justice is not to be found in terms in the statutory provisions which govern or which have governed appeals from criminal convictions in the Australian Capital Territory.

At first, the Judiciary Act 1927 conferred original criminal jurisdiction upon the High Court in relation to the Territory of the Seat of Government, but s.30B(4) of the principal Act (the Judiciary Act 1903) denied an appeal 'except so far as, under the Constitution or the laws of the Commonwealth an appeal may be brought to a Full Court of the High Court'. We have found no reported instance of an appeal prior to the creation of the Supreme Court of the Australian Capital Territory pursuant to the Seat of Government Supreme Court Act 1933. Section 52 of that Act conferred an appellate jurisdiction upon the High Court in respect of convictions on indictment before the Supreme Court. Among the grounds of appeal specified in s.52, in both its original and amended form (s.52 of the Australian Capital Territory Supreme Court Act 1933 as amended in 1964) were grounds involving a question of law, a question of fact, a question of mixed law and fact and 'any other ground that appears to the Full Court of the High Court to be a sufficient ground of appeal'.

The High Court also had power, pursuant to s.36 of the Judiciary Act, to order a new trial when it set aside a conviction under s.52 of the Australian Capital Territory Supreme Court Act (Sparre v. R (1942) 66 C.L.R. 149), and thus the statutory formulation of the appellate jurisdiction of the High Court provided for relief as ample as the relief available in the Australian States under their respective new trial provisions, upon grounds which were seemingly as broad as those contained in the common form statute.'

Section 47 of the Northern Territory Supreme Court Act 1961, as it was in force at the commencement of the Federal Court of Australia Act 1976, was in terms similar to those of s.52 of the Australian Capital Territory Supreme Court Act 1933. The opinion concerning grounds of appeal which is expressed in the last clause of the passage just quoted from Duff's case may have been based on the view that the words, 'any other ground that appears to the Full Court of the High Court to be a sufficient ground of appeal' would authorise the allowance by the High Court of any ground of appeal which might be authorised by the words of the common form statute.

8. The ground to which expression is given in paragraph 6 of the appellants' notice of appeal is said to derive from the expression 'miscarriage of justice' in the common form statutes and Counsel for the Crown submitted that it is not a ground of appeal available to this Court. Barwick C.J. has expounded this ground, upon an appeal from the Full Court of the Supreme Court of Victoria, in Ratten v. The Queen (1974) 131 C.L.R. 510 at 515-516:

'It is convenient first to observe the powers given to the court of criminal appeal by s.568 of the Crimes Act. This provision is in the same terms as s.4 of the Criminal Appeal Act 1907 (U.K.). Apart from lack or deficiency of evidence or misdirection in point of law, the court is to allow an appeal if, on any ground there is a miscarriage of justice, just as it may yet reject an appeal, though there was error in the proceedings of the trial, if in the court's view there was no miscarriage of justice. The use of the expression 'miscarriage of justice' in this context has given to the court of criminal appeal a function of independent judgment on the facts of the case which a court of appeal hearing an appeal from the verdict of a jury ordinarily does not have. 'That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance'. (Hargan v. The King (1919) 27 C.L.R. 13 at p.23, per Isaacs J.; also R. v. Baskerville (1916) 2 K.B. 658 at p.664, per Lord Reading C.J.).

The amendment in 1966 in the United Kingdom of the formulation of the jurisdiction of the court of criminal appeal now appearing in s.2(1) of the Criminal Appeal Act 1968 (U.K.), as interpreted by the House of Lords in Stafford v. Director of Public Prosecutions (1974) A.C. 878 would seem to have increased the scope for the exercise by the court of its own assessment of the evidence in a case, though it has had no opportunity to hear the witnesses called before the jury. This amendment has not been made in Australian legislation, but this Court has recently reiterated the view that under the Australian provisions a court of criminal appeal in Australia should allow an appeal if on its own view of the evidence it would be dangerous or unsafe in the administration of the criminal law to allow a verdict of guilty to stand (Hayes v. The Queen (1973) 47 A.L.J.R. 603). This decision may not have disclosed as great a discretion in a court of criminal appeal in Australia, as the decision of the House of Lords in Stafford v. Director of Public Prosecutions (1974) A.C. 878 has done for the United Kingdom. But the Court's decision is founded on the existence of the function of independent assessment of the evidence by the court of criminal appeal. This function is of particular importance when considering what a court of criminal appeal should do when asked to disturb a jury's verdict on the production of new evidence.

Miscarriage is not defined in the legislation but its significance is fairly worked out in the decided cases. There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand. It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution: as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration.

That is one instance of a miscarriage:..."

If that instance of miscarriage is not within the cognisance of this Court, although it did afford a ground of appeal which the High Court might have thought 'a sufficient ground of appeal' from the Supreme Court of the Northern Territory of Australia or the Supreme Court of the Australian Capital Territory before the commencement of the Federal Court of Australia Act 1976, the draftsman of that Act may be thought to have had in mind the alteration in the available grounds of appeal which the commencement of that Act would work: s.24(4) is so expressed, in my opinion, as to preserve, for the persons to whom the introductory clause of the sub-section refers, the right to have determined in accordance with the provisions of s.47 of the Northern Territory Supreme Court Act 1961 or s.52 of the Australian Capital Territory Supreme Court Act 1933 the appeals or the applications for leave or special leave which before the commencement of the Federal Court of Australia Act 1976 they might have made to the High Court. Section 24 works an alteration of the court, from the High Court to this Court, in which those persons may bring their appeals and their applications, but not an alteration of the other provisions which are contained in s.47, or in s.52. The conversion which s.24(4) is expressed to effect necessarily imports, as I think, the provisions of s.47 or s.52, as the case may be, which differentiate appeal as of right, appeal by leave, and appeal by special leave. The differentiation is for the most part by reference to the nature of the ground of the appeal in contemplation. It is not in my opinion to be thought that s.24(4) orders a determination whether an appeal lies as of right, and whether leave or special leave is to be required, in accordance with the nature of the ground of appeal, but refers to some source other than s.47, or s.52, a determination whether on the hearing of the appeal a particular ground of appeal is available.

The opinion of this Court in Duff's case upon which counsel for the Crown relied in support of his submission that the ground of appeal stated in paragraph 6 of the appellants' notice of appeal is not available to them is to be gathered principally from three passages in their Honours' reasons for judgment. Two of the passages are in the general examination which their Honours undertook of the criminal appellate jurisdiction of this Court and of the grounds upon which the jurisdiction was to be exercised. Those passages are:

'The grounds of appeal under the common statutory form (as to which, see Raspor v. R. (1958) 99 C.L.R. 346 at 350-2; Plomp v. R. (1963) 110 C.L.R. 234 at 244-7; (1964) A.L.R. 267 at 270-2; Ratten v. R. (1974) 131 C.L.R. 510 at 514-6; 4 A.L.R. 93 at 97-8; Driscoll v. R. (1977) 137 C.L.R. 517 at 524-7; 15 A.L.R. 47 at 53-6) are not to be taken as identical with the new trial grounds of appeal. The judgments of a court acting under the common form statute cannot be unquestioningly applied by this court acting under powers differently formulated (see Ratten, supra, at the pages cited).' (28 A.L.R. at 674).

'The grounds upon which a new trial may be granted after judgment entered upon a jury verdict are the grounds available to an appellant to this court against a conviction after a trial on indictment before the Supreme Court of the Australian Capital Territory.

The limit upon the grounds available may be of some significance in the present case, for it would not avail the appellant to persuade this court to a view that it is unsafe or unsatisfying to allow a verdict of guilty to stand on the evidence of identification of the appellant as the assailant (Plomp, supra, per Dixon CJ: 110 C.L.R. at 244; (1964) A.L.R. at 270), if the jury could properly have found the verdict, viewing the whole of the evidence reasonably and appreciating the onus and standard of proof (Raspor, supra; 99 C.L.R. at 352)'. (28 A.L.R. at 675).

The third passage forms part of the Court's consideration of a ground o appeal that certain evidence of identification of the accused as the man who had attacked the witness should not have been admitted, or that the evidence, if admitted, should have been the subject of a warning by the trial judge to the jury. Their Honours observed (28 A.L.R. at 682-683):

'The appellant's arguments in support of this ground of appeal encounter some formidable obstacles. The appellant must show that the reception of the identification evidence before the jury was erroneous; it is not sufficient to show that a conviction based on that evidence is unsafe or unsatisfactory. This court is not exercising appellate jurisdiction under the common form statute which has been the statutory context of much of the case law on identification evidence.

In Davies and Cody v. R. (1937) 57 C.L.R. 170, the High Court pointed to the foundation of the jurisdiction to intervene. They noted (at p.180) that the Court of Criminal Appeal in England 'will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or mislead. This is the basis upon which the English court has set aside convictions resting upon identification conducted in an unfair or unsatisfactory manner.'

Armed with wide powers of intervention, courts of criminal appeal have laid down some rules of practice to be followed when a suspect is to be identified, and they are empowered by the common form statute to make those rules effective. But it does not follow that the rules of practice are transformed into rules of law; rather do the rules of practice acquire such force as the court of criminal appeal chooses to give them. Thus in Davies and Cody, supra, the High Court applied the English practice to Victoria when it said (at p.182): 'We think the view accepted in England and, as far as we know, elsewhere in the Dominions where the provisions of the Criminal Appeal Act have been adopted, should be applied in Victoria. That view, as we understand it, is that, if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial. Where that further evidence consists in or includes other witnesses whose identification has been of the same kind, the number of witnesses, their opportunities of obtaining an impression or knowledge of the prisoner and other circumstances in the case must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole case the possibility of error is so substantial as to make the conviction unsafe.' If it be material to our decision, it may be noted that in the present case the appellant was not shown alone and other evidence tended to prove his identity with the assailant.

It is not sufficient for the appellant to show that his conviction was 'unsafe' as that term is used in Davies and Cody, supra. Narrower grounds must be relied on, and it must be shown that the identification evidence was inadmissible or that a judicial discretion to reject the evidence miscarried or that the summing-up was inadequate.' (28 A.L.R. at 682-683).

9. Counsel for the appellants' submission was that we should decline to accept those passages as correctly stating the law. The Federal Court of Australia Act 1976 not containing any statement of the grounds upon which a conviction by verdict might be set aside in exercise of this Court's appellate jurisdiction, the Court should regard itself as free to exercise the jurisdiction upon no narrower a set of criteria than was available throughout all the States of the Commonwealth, it was submitted. It was said that the legislature could hardly be supposed to have intended, but to have abstained from plainly expressing, a circumscription of the grounds of appeal formerly available to persons convicted on indictment in the two continental Territories of the Commonwealth, and still available elsewhere throughout that continent.

10. Before resolving, or leaving moot, the questions raised by those opposed submissions, I turn to consider what the scope of review is which is afforded by the 'grounds upon which a new trial may be granted after judgment entered upon a jury verdict', for it was those grounds which the Full Court declared in Duff's Case to be available to an appellant to this Court against a conviction after a trial on indictment before the Supreme Court of the Australian Capital Territory. And no means seems to exist of distinguishing between that Court and the Supreme Court of the Northern Territory of Australia, for present purposes.

11. Upon conviction for misdemeanour in the King's Bench a new trial might have been had, from the seventeenth century until the Criminal Appeal Act 1907, upon motion to the court in banc, and proof of facts in support of the motion by affidavit was admitted: see 84 L.Q.R. 202-209; 26 Yale L.J. 49-60; 27 Can. B.R. 46, 153; and the authorities there cited; R v. Mawbey (1796) 6 T.R. 619; 101 E.R. 736. One of the grounds on which a new trial might have been granted in that Court was variously stated: that the verdict was against the weight of evidence (South Eastern Railway Co. v. Smitheram (1883) 47 J.P. 773 at 774, per Lord Blackburn; Holdsworth: A History of English Law, vol. 1, p.216; Driver v. War Service Homes Commissioner (No. 1) (1924) V.L.R. 515 at 533, per Cussen A.C.J.); contrary to evidence (Gurner: The Practice of the Criminal Law of the Colony of Victoria (1871), p.174; Chitty's Criminal Law, vol. 1, pp. 654-656; Blackstone's Commentaries vol. III, pp. 387-388; Tidd's Practice (9th ed.) vol. II, p.908; Hawkins' Pleas of the Crown Book 2 Ch. 47, S.12); and against the evidence (Stephen: A History of the Criminal Law (MacMillan, 1883) vol. 1, p.311; Metropolitan Asylum District v. Hill (1882) 47 L.T. 29 at 33, per Lord Blackburn). But there is, as I think, no doubt that it was a ground for the grant of a new trial that the court considered, having regard to the whole of the evidence (whether or not the evidence was conflicting) that the verdict was one which the jury, viewing that evidence reasonably, could not properly have found. The matter for consideration by the court was a question of fact and the function of the court was the discretionary exercise of a 'superintendent' power over trials by jury in that court. Although sometimes fine, the distinction is clear and important between that function and the function, which a judge might be called upon to perform at a trial by jury and which the court in banc or another court exercising appellate jurisdiction might be called upon to exercise, of determining whether there was reasonable evidence upon which a jury might reasonably find an issue in favour of the party on whom the burden of proof rested. That is a question of law. The distinction between the two functions lies in 'the distinction between the power of the court to control perverse or unreasonable verdicts by new trial, a power the exercise of which involves no question of law, and its duty to decide the question of law whether there is evidence which might reasonably satisfy the jury that the fact sought to be proved is established' (per Dixon J. in Hocking v. Bell (1945) 71 C.L.R. 435 at 497). The exercise of the former function could result only in an order for a new trial, unless statutory authority for some other order was provided. The exercise of the latter function could have other results, as for example a non suit or a judgment, contrary to the jury's verdict, in favour of the party on whom the burden of proof had rested. See Hocking v. Bell (1943) 43 S.R. (N.S.W.) 154 at 155-160; Hocking v. Bell (1945) 71 C.L.R. 430 espec. at 439-445, 465-469, 486-487, 497-500; The Queen v. Berger (1894) 1 Q.B. 823; Raspor v. The Queen (1958) 99 C.L.R. 346; and the authorities previously cited in this paragraph. As a matter of terminology the expression 'against the evidence' should, it seems, be reserved for a contention that a verdict for the party on whom the burden of proof does not lie should be set aside and a new trial ordered on the ground that all the evidence was the other way; and the expression 'against the weight of evidence' should be reserved for a contention that upon conflicting evidence the verdict was one which a tribunal of fact could not reasonably find: Mount Bischoff Tin Mining Co. v. Mount Bischoff Extended Tin Mining Co. N.L. (1913) 15 C.L.R. 549 at 551, 552, 559, 560-564; Hocking v. Bell (1945) 71 C.L.R. 430 at 440-444; 75 C.L.R. 125 at 130-132; Raspor v. The Queen (1958) 99 C.L.R. 346 at 351; Conlon v. Davis (1967) 2 N.S.W.R. 6 at 9-10. But, as Sugerman J.A. points out in the last case, the terminological distinction is often not observed. In Raspor's Case it is both drawn and then ignored.

12. The fifth ground in the appellants' notice of appeal reads (mistakenly in the singular):

'The verdict was against the evidence and the weight of the evidence.'

Counsel for the respondent Crown submitted that in this Court the verdicts of the jury cannot be impugned on the ground that they were against the weight of the evidence. Counsel founded the submission upon Aladesuru v. The Queen (1956) A.C. 49 and Raspor v. The Queen supra. Neither decision provides, in my opinion, a comfortable ground for the Crown: the first was, as I think, a decision based on the precise verbiage of a 'common form statute', whereas the Crown otherwise rests its submissions in restriction of the grounds of appeal available to this Court upon the circumstance that those statutory provisions do not regulate criminal appeals to this Court; and the reasons for judgment in the second decision in my opinion both delicately undermined the authority of the first decision and also affirmed the conceptual identity of the two phrases, 'against the weight of the evidence' and 'cannot be supported having regard to the evidence', as Menzies J. pointed out in Plomp v. The Queen (1963) 110 C.L.R. 234 at 250. The latter phrase is to be found in the common form statutes. The authority which is cited by Dixon C.J., Fullagar and Taylor JJ. in Raspor's Case (99 C.L.R. at 352) for the proposition that 'to be against the evidence means that the verdict is one which viewing the whole of the evidence reasonably the jury could not find' was a decision of the Privy Council (Phillips v. Martin (1890) 15 A.C. 193) that upon conflicting evidence a verdict could not, on the facts, be disturbed by the Judicial Committee, on an appeal on the ground 'that the verdict was against the evidence, or the weight of the evidence'. As was said by Lord MacNaughten for the Judicial Committee (15 A.C. at 194): 'It is settled that a verdict ought not to be disturbed on that ground unless, to use the words of Lord Herschell in Metropolitan Railway Company v. Wright (1886) 11 App. Cas. 152, 'it was one which a jury, viewing the whole of the evidence reasonably, could not find'.' Lord Herschell's observation was made in explanation as to what is required to establish the ground that a verdict is against the weight of the evidence, and was made in a case in which there was conflicting testimony on the issue which the verdict determined.

The first appellant says she saw tear or cut marks on one side of the purple blankets which she had not seen before the incident and which she interpreted as having been made by the dingo. Professor Chaikin said that these were not tear marks but were made by insects, some of the larvae of which were found in the marks. The first appellant also said that she saw pad marks on a space blanket which was in the tent and she also spoke of rip marks in this article. The rip marks were said by Sgt. Cocks to be normal wear and tear. The first appellant said in her record of interview that her mother, her sister-in-law, her husband, her father and her brother, all saw the pad marks on the space blanket. None of these people were called to give evidence at the trial except for her husband who said nothing at all about the pad marks.

The appellants concede, as they must, that there are some differences between accounts given at different times to the police and to the coroner, to other witnesses and to the trial jury, but it is said that these differences are no more than is to be expected from a distraught and upset woman trying her best to recall what must have seemed like a nightmare.

A further point to be considered concerning the dingo is that not one dingo hair was found in the tent, nor was one found on the singlet or the jumpsuit. The Crown concedes that Miss Fogarty, an inexperienced police officer, handled the tent and some of the articles therefrom less than perfectly but nevertheless says that the total absence of dingo hairs is surprising. The jumpsuit was examined for saliva in a selective way by Dr. Scott. He took samples from where he thought saliva would have been and found none. This does not of course prove that there was not saliva elsewhere and the tests really proved nothing. When considering the question of saliva, one must also bear in mind that the evidence of the first appellant is that the child was wearing what is called a matinee jacket which, as we have said before, has never been found. If she was grasped by the dingo by this matinee jacket, saliva stains might be thought to be on that jacket.

The first appellant's track suit pants. Blood stains on the first appellant's track suit pants formed an important issue. The first appellant gave these pants to a Mrs. Ransome at Mt. Isa on a day towards the end of August l980 after the Chamberlains had returned to Mt. Isa from Ayers Rock. The first appellant asked Mrs. Ransome to take the pants and some other articles to the dry cleaners. She indicated to Mrs. Ransome some stains on the legs of the pants which she said she wanted the cleaners' attention directed to. Mrs. Ransome spoke of 'small marks resembling a splash' which she took to be blood. Mrs. Hansell, a dry cleaner at Mt. Isa, said she saw blood stains on the pants at the front on each leg below the knee. These stains responded to the cleaning agent normally used for blood. She described the spots as like splattering and said that they varied in size and there were between one and three dozen all told. The Crown opened the theory that the first appellant was wearing the track suit pants when she killed the child and that it was the child's blood which could be seen. Very shortly after the time at which, on the Crown account, she must have killed the child, Mrs. Lowe was talking to the first appellant at the barbecue and she says that she was not then wearing track suit pants. Mrs. West confirms this as also does Mrs. Whittacker. The first appellant says that she put the track suit pants on at about 9.30 to l0 o'clock that night and further says that the pants were lying in the tent when Azaria disappeared and that the blood spots must have got on to them when the dingo carrying the child shook its head. Sister Elston says that the first appellant was wearing the pants when she was clearing out the tent after l0 o'clock. Unless Mrs. Lowe, Mrs. West, Mrs. Whittacker and Sister Elston are all mistaken, if the Crown hypothesis about the pants is to be accepted, the first appellant must have donned the pants, killed the child, taken the pants off, then put them on again later, somewhat unlikely behaviour. The issue of the pants seems to us a weak aspect of the Crown case but, of course, the case does not depend on it.

We examine next the sequence of events just before it was discovered that the baby had disappeared. The appellants were at the barbecue with their son Aiden and were in conversation with Mr. and Mrs. Lowe. The second appellant and Aiden ate a meal. Shortly afterwards the first appellant, who was holding Azaria, went with Aiden towards the tent. A little later she returned with Aiden who wanted more to eat. She had a can of beans in her hand. After the first appellant had returned to the barbecue Mrs. Lowe heard what she describes as a serious baby's cry coming from the direction of the tent. The second appellant apparently heard the cry too but the first appellant did not. At the second appellant's suggestion the first appellant returned to the tent. Either when she was half-way there or after she arrived there, the first appellant cried out, 'The dog's got my baby' or words to that effect. After this, the alarm was raised and searches commenced. The Crown theory is that the first appellant killed the child in the front of the car between leaving the barbecue area ostensibly to put the baby down and returning with Aiden and the can of beans. The time interval between these events is fixed by Mrs. Lowe at six to ten minutes in one place, and five to ten minutes in another, and by Lowe at eight to ten minutes. The Crown says that this was an adequate time in which to kill the child and the appellants say that it hardly was. If the Crown's theory is accepted, Mrs. Lowe was either mistaken or lying about hearing the baby's cry, and so was the second appellant, because on the Crown's theory the baby was already dead when the cry was said to have been heard. The jury, of course, saw and heard the witnesses and, because of their verdict, must have concluded that Mrs. Lowe's evidence and that of the second appellant was inaccurate.

We examine next the question of the appellants' opportunity to bury the body of the child which, on the Crown hypothesis, they did. The precise sequence of events after the alarm was raised at about 8 p.m. is not clear. For the time being at least the body of the child must have been in the car or, a good deal less likely, hidden in the scrub somewhere. There were many people about for most of the time, searchers coming and going, and people comforting the appellants, but if the appellants were bold enough there were opportunities for the child to be buried as hypothesised in a shallow grave somewhere in the nearby dune area. According to Mrs. West the appellants were away from the immediate area on one occasion for ten minutes, and according to Mrs. Whittacker they were away once for fifteen to twenty minutes. There were also times later in the evening after the Lowes had left at about l0 o'clock and before the main searchers returned at about ll p.m. when no-one is proved to have been with the appellants. No-one saw either of them going to the car for any apparent reason. Having examined the evidence we have come to the conclusion that it would have been difficult but not impossible for the appellants or one of them to have buried the child.

Another point of importance is that on the Crown hypothesis there must have been a good deal of blood in the car after the baby was killed. This must have been fairly thoroughly cleaned up before Sister Elston was invited to travel in the car to the motel at about l2.30 to l.00 a.m. None of the witnesses, who were around the car and the tent from the time the child was discovered to be missing until the car was driven away, saw either of the appellants at or in the car doing any cleaning or indeed anything else. This is, of course, a matter of some weight. However, it is a negative proposition and does not prove that neither appellant cleaned up the car. There were people milling about, searchers coming and going as we have said. It would no doubt have been difficult for the car to be sufficiently cleaned of blood for Sister Elston not to have observed any, difficult but certainly not impossible.

There are other matters the weight of which in the appellants' favour must be taken into account. There is a psychological improbability of an apparently loving and caring mother killing her child in the manner suggested by the Crown. The appellants not only had the presumption of previous good character in their favour, there was also positive evidence of good character. The second appellant was and is a pastor in good standing in the Seventh Day Adventist Church. Both appellants exhibited considerable distress after the child disappeared but, as was pointed out to the appellants' counsel, this might be of equivocal weight because one would expect the first appellant to be distressed after killing her child if she did so, and one would expect the second appellant to be distressed after discovering what she had done. There was no motive proved or even suggested as to why the first appellant should kill her child. The child's body was never found. There was a good deal of evidence from persons at Ayers Rock and from Mrs. Ransome in Mt. Isa that the first appellant was a loving and caring mother. There was also evidence from Dr. Milne, an obstetrician who attended the first appellant at the time of the birth of Azaria, that the delivery was normal and that the child was normal and healthy and that after her birth the first appellant displayed none of the symptoms of even mild post natal depression. There was also evidence that both appellants were overjoyed at the birth of their daughter.

It is pointed out that the weapon used in the throat cutting, if it occurred, was never found. No blood was seen by any witness on the first appellant. This might be thought to be surprising if she had held the child and cut its throat so that blood soaked into the jumpsuit and singlet in such volume and so that blood spurted on to the underside of the dashboard. The only blood on the first appellant's clothing was that on the track suit pants which she said she was not wearing at any relevant time, and on her sandshoes which can be accounted for by her having crawled into the tent, looking for the child, when there had been blood spilt there. No admission of guilt was made by either appellant. Both have continually and consistently denied their guilt.

It was also pointed out by the appellants' counsel that they were most co-operative with police and that some at least of what turned out to be evidence against them would not have been discovered without their help. The camera bag, for instance, was volunteered as were other articles which had been in the car and in the tent which police were probably unaware of.

It was argued by counsel for the Crown that the behaviour of the appellants immediately after the baby's disappearance was inconsistent with what one might have expected from sorrowing bereaved parents. Instead of the frantic searching which one might have expected, the appellants stayed mostly close to the camping area awaiting,as they said, news from the other searchers. On the following day they went about the area taking photographs, some of which were for sending to an Adelaide newspaper. They did no further searching on this day or on any later day which one might have expected even though by then there could have been very little hope that the baby was alive. Fairly early in the morning of the following day they had been asked by Constable Morris to sign a form notifying death to the coroner. The fact that the child was almost certainly dead and the misbehaviour of their two boys were the reasons given by the appellants for going sight-seeing and photographing on the day after the disappearance. Another time the second appellant accounted for his failure to do any more searching by saying that he had to stay near the motel in case there was news, but of course he did not remain near the motel very much. As well as attacking the credibility of the second appellant the Crown points to the inconsistencies in the various accounts given by the first appellant which we have mentioned above.

The jury's verdicts necessarily mean that they disbelieved the most significant parts of the evidence of each appellant. Whatever may be thought about the importance of seeing and hearing expert scientific witnesses in order to evaluate their testimony, we are in no doubt that in assessing the credibility of the two appellants the jury, who saw and heard them, enjoyed a considerable advantage over this Court. There is nothing about their evidence when read which compels belief, rather the reverse. If the jury disbelieved them, as they must have done, we are quite unable to say that they were wrong. The evidence of the appellants, because of its contents and their manner of giving it, may have been disbelieved quite apart from the other inculpatory evidence or the jury might simply have entertained doubts about its accuracy and these doubts, coupled with other evidence, may have led them to satisfaction of guilt beyond reasonable doubt. In either case we are unable to say that the jury was wrong.

Having re-read the evidence given at the trial and the submissions put on the hearing of the appeal and having considered fully the points and arguments both for and against we have come to the conclusion that we must reject ground 5. It would,in our view, be wrong to hold that the verdict against either appellant was one which viewing the whole of the evidence reasonably the jury could not properly find.

In the result we would dismiss both appeals.