Chamberlain v The Queen (No 2)

[1984] HCA 7

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Brennan and Deane JJ.

CHAMBERLAIN v. THE QUEEN (No.2)

(1984) 153 CLR 521

22 February 1984

Criminal Law—Evidence—Federal Court

Criminal Law—Appeal—Verdict—Whether unsafe or dangerous—Role of appellate court. Evidence—Criminal trial—Circumstantial evidence—Assessment by jury—Whether to be satisfied beyond reasonable doubt of each fact from which inference of guilt to be drawn. Federal Court—Criminal appeal—Appeal from Territory Supreme Court—Power to set aside unsafe or dangerous verdict—Function of Court in considering whether verdict should be set aside—Federal Court of Australia Act 1976 (Cth), ss. 24(1), 27, 28.

Decisions

1984, February 22.
The following written judgments were delivered:-
GIBBS C.J. AND MASON J. The applicants, Alice Lynne Chamberlain and Michael Leigh Chamberlain, are wife and husband. By an indictment presented to the Supreme Court of the Northern Territory, Mrs. Chamberlain was charged that on 17 August 1980 at Ayers Rock in the Northern Territory she did murder Azaria Chantel Loren Chamberlain. By the second count of the indictment, Mr. Chamberlain was charged as an accessory after the fact, the particulars being that between 17 August 1980 and 16 December 1981 at Ayers Rock, Alice Springs and other places in the Northern Territory he did receive or assist another person, namely Alice Lynne Chamberlain, who to his knowledge was guilty of an offence against the law of the Territory, namely the offence of murdering Azaria Chantel Loren Chamberlain at Ayers Rock on 17 August 1980, in order to enable the said Alice Lynne Chamberlain to escape punishment. Each pleaded not guilty but the jury found both to be guilty as charged. They appealed against their convictions to the Full Court of the Federal Court. That Court (Bowen C.J., Forster and Jenkinson JJ.) dismissed the appeals. They now apply for special leave to appeal against that decision. (at p523)

2. A question that arises at the outset of the case is whether the Full Court of the Federal Court had power to allow the appeal on the ground that the verdicts were unsafe, unsatisfactory or dangerous. A majority of the Full Court in the present case (Bowen C.J. and Forster J.), following an earlier decision of the Federal Court in Duff v. The Queen (1979) 39 FLR 315; 28 ALR 663 , held that such a ground of appeal could not be entertained. The third member of the Court, Jenkinson J., said that he was "free of any such doubt as to the guilt of the appellants as might justify a conclusion that the verdicts were unsafe or unsatisfactory" and that he did not himself entertain any reasonable doubt of the guilt of either appellant. He therefore considered it unnecessary to express, and refrained from expressing, any concluded opinion as to whether the decision in Duff v. The Queen on this point was correct. (at p524)

3. Immediately before the Federal Court of Australia Act 1976 (Cth) came into operation, appeals by persons convicted on indictment before the Supreme Court of the Northern Territory lay to the High Court. Section 47(1) of the Northern Territory Supreme Court Act 1961 (Cth), as amended, provided as follows:

"A person convicted on indictment before the Supreme Court may appeal to the High Court - (a) against his conviction on any ground of appeal that involves a question of law alone; (b) with the leave of the Supreme Court or a Judge, on any ground of appeal that involves a question of fact alone or a question of mixed law and fact; (c) with the leave of the High Court, on any ground of appeal mentioned in the last preceding paragraph, or on any other ground that appears to the High Court to be a sufficient ground of appeal; and (d) with the leave of the High Court, against the sentence passed on his conviction, unless the sentence is one fixed by law, and the High Court has jurisdiction to hear and determine the appeal."

That section was repealed by the Northern Territory Supreme Court Amendment Act 1976 (Cth) which took effect on the day on which the Federal Court of Australia Act came into operation. By s. 24(1) to (4) of the Federal Court of Australia Act it is provided as follows:

"(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."

Section 25(1) provides that the appellate jurisdiction of the Court shall, subject to immaterial exceptions, be exercised by a Full Court. The powers of the court on appeal are described in ss. 27 and 28 of the Federal Court of Australia Act. Section 27 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, which evidence may be taken on affidavit, by oral examination before the Court or a Judge or otherwise in accordance with section 46."

Section 28(1) provides as follows:

"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 circumstances, 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."

Section 28(5) provides as follows: "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." (at p526)

4. Duff v. The Queen (1979) 39 FLR 315; 28 ALR 663 was a decision on the power of the Federal Court on an appeal from the Supreme Court of the Australian Capital Territory. There is however no possible ground of distinction between appeals from that Court and appeals from the Supreme Court of the Northern Territory. Before the enactment of the Federal Court of Australia Act, appeals from the Supreme Court of the Australian Capital Territory lay to the High Court, under s. 52 of the Australian Capital Territory Supreme Court Act 1933 (Cth), as amended, a section which was indistinguishable in effect from s. 47 of the Northern Territory Supreme Court Act. Section 52, like s. 47, was repealed on the day on which the Federal Court of Australia Act came into operation: see Australian Capital Territory Supreme Court Amendment Act 1976 (Cth). In Collins v. The Queen (1980) 31 ALR 257, at p 261 , it was correctly assumed that the decision in Duff v. The Queen was equally applicable to appeals from the Northern Territory. (at p526)

5. The reasons given by the learned judges who constituted the Full Court in Duff v. The Queen for reaching their conclusion that the powers of the Federal Court in criminal appeals were limited in the way that we have mentioned appear at pp. 670-675 of the report and may be summarized as follows. The powers of a Court of Criminal Appeal to set aside a jury verdict depend on the statute creating the appellate jurisdiction. No grounds upon which the criminal appellate jurisdiction of the Federal Court may be exercised are specified in the Federal Court of Australia Act. It is clear that the appellate powers of the Federal Court are not limited to the hearing and determination of an appeal in the strict sense, and the grounds upon which it may allow an appeal therefore cannot be restricted to those which govern the determination of a strict appeal. The grounds upon which, at common law, new trials may be granted after judgments entered on jury verdicts govern the determination of an application for a new trial under s. 28(1)(f), and the words "on any ground upon which it is appropriate to grant a new trial" which appear in that paragraph (and which do duty both for criminal and civil appeals) refer to the grounds on which the verdict may be set aside as well as to the considerations to be taken into account in deciding whether a new trial should be ordered or whether the conviction should simply be quashed. Since it would be anomalous if the grounds for setting aside a verdict and judgment varied according to the relief which was sought or allowed, "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)" (1979) 39 FLR, at p 329; 28 ALR, at p 674 . The grounds of appeal under the common statutory form (i.e. the common form of the statutes governing appeals in the Australian States, which were based on s. 4(1) of the Criminal Appeal Act 1907 (U.K.)) are not identical with "the new trial grounds of appeal". The conclusion of the Court was expressed as follows (1979) 39 FLR, at p 330; 28 ALR, at p 675 :

"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 . . . if the jury could properly have found the verdict, viewing the whole of the evidence reasonably and appreciating the onus and standard of proof . . ."

Again their Honours said (1979) 39 FLR, at p 340; 28 ALR, at p 683 : "It is not sufficient for the appellant to show that his conviction was 'unsafe' as that term is used in Davies and Cody (1937) 57 CLR 170 . 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." (at p527)

6. Whether this conclusion is correct depends on whether or not it was right to hold that the failure of the Federal Court of Australia Act to specify the grounds on which criminal appeals might be allowed meant that the only grounds available were those on which a new trial might be granted at common law. The power to quash a conviction and grant a new trial of a criminal case at common law was very limited. It was held by the Privy Council in Reg. v. Bertrand (1867) LR 1 PC 520 that no power existed to grant a new trial to a person convicted of a felony. Cases of misdemeanour could however be commenced in the Court of Queen's Bench by information, or removed into that court by certiorari, and in such cases it was possible to order a new trial, as Professor Friedland explains in a learned article in the Law Quarterly Review (vol. 84 (1968) 185, at pp. 202 et seq.). Although new trials were granted in such cases at least from the seventeenth century, some doubt seems to have persisted on the point, for in Reg. v. McLeod (1890) 11 NSWR(L) 218, at pp 231-232 Windeyer J. said:

"It is said that the conviction may be upheld, because a new trial will not be granted in a civil case where evidence has been improperly admitted, if the Court sees that a contrary verdict would have been so demonstrably wrong that a new trial would have been granted. I am of the opinion that this rule, which is in the nature of a proviso to the general rule, that the Court will grant a new trial in a civil case where evidence has been improperly admitted, cannot be applied on the criminal side of the Court, where no power of granting new trials exists."

In Reg. v. Berger (1894) 1 QB 823 , where a defendant was found guilty on an indictment preferred in the Queen's Bench Division for obstructing a highway, the question whether the court had jurisdiction to entertain an application for a new trial on the grounds of misdirection, misreception of evidence and verdict against the evidence, was apparently still thought open to argument, but it was held that the court could grant a new trial after a conviction for misdemeanour on those grounds. The position at the beginning of the twentieth century was described by Professor Friedland as follows (Law Quarterly Review, vol. 84, p. 202):

"Before the Criminal Appeal Act 1907 abolished the practice, a new trial could be obtained after a conviction for a misdemeanour if the proceeding has been instituted or removed by certiorari into a Court of Queen's Bench."

Professor Friedland went on to give an account of the procedural reasons which prevented the concept of new trials from developing as fully in the criminal law as in civil actions, and to explain that the procedure could have had no application for most criminal cases (see at p. 205). It would seem to us most unlikely that in 1976 the Parliament intended to confer on the Federal Court an appellate power whose extent was to be determined by reference to the rule of the common law which allowed new trials to be had in certain criminal cases - a rule which was limited in scope and rarely applied and which had been obsolete since the Courts of Criminal Appeal had been established decades before. It would seem equally unlikely that it was the intention of the Parliament that the common law rules relating to the grant of new trials in civil actions should govern criminal appeals in the new Federal Court. The true position, in our opinion, is that when the Parliament departed from the usual legislative model, and failed to state the grounds or principles on which the Federal Court is to determine criminal appeals, it conferred on that court a wide discretion to ensure that justice is done in criminal cases. The grant of a general appeal by s. 24(1)(b) of the Federal Court of Australia Act was intended to enable the Full Court of the Federal Court to "entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous": cf. Ah Yick v. Lehmert (1905) 2 CLR 593, at p 601 . Since it cannot be supposed that the Parliament intended to make available to the citizens of the Territories an inferior sort of justice, or to require that the Federal Court should affirm a criminal conviction notwithstanding that it had reached the conclusion that a miscarriage of justice had occurred, it must be concluded that the power of the Federal Court, unfettered in terms as it is, was intended to extend at least as widely as those of the State Courts of Criminal Appeal, and thus to enable the Federal Court to set aside a verdict whenever it is of opinion that there has been a miscarriage of justice. (at p529)

7. We cannot agree, although it probably does not matter, that the grounds for setting aside the verdict of a jury are to be found in par. (f) of s. 28(1). The power to set aside jury verdicts is given by par. (d), in the case of civil actions, and par. (e), in the case of trials on indictment. In both cases the power is conferred without restriction, and is not limited to any particular grounds. However, if, as their Honours thought in Duff v. The Queen (1979) 39 FLR 315; 28 ALR 663 , the words "on any ground upon which it is appropriate to grant a new trial" in par. (f) state the criteria for setting aside a jury's verdict, they are no less wide than the words of s. 47 of the Northern Territory Supreme Court Act and s. 52 of the Australian Capital Territory Supreme Court Act, and could not have been intended to confer on the Federal Court powers narrower than those which the High Court formerly possessed by virtue of those sections. Indeed the provisions of s. 24(4), under which existing rights to appeal, or to seek leave or special leave to appeal, to the High Court, were converted into corresponding rights to appeal, or to seek leave or special leave to appeal, to the Federal Court, are inconsistent with the notion that in the conversion the right to appeal, or to seek leave or special leave to appeal, was somehow reduced in efficacy. In Duff v. The Queen the court said (1979) 39 FLR, at p 328; 28 ALR, at p 673 , that the judgment of this Court in Stokes v. The Queen (1960) 105 CLR 279 implicitly recognized that the common law rules as to the granting of new trials were appropriate on an appeal against a conviction on indictment before the Supreme Court of the Australian Capital Territory. It was said in the latter case (1960) 105 CLR, at pp 284-285 that "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". No doubt that rule is analogous to the rule of the common law which governs the grant of new trials from jury verdicts in civil cases and which was discussed in the passage in Balenzuela v. De Gail (1959) 101 CLR 226, at pp 234-235 , mentioned by the Court in Duff v. The Queen (1979) 39 FLR, at pp 328-329; 28 ALR, at p 673 . However the same principle is applied by the State courts in deciding whether there has been a substantial miscarriage of justice within the proviso to the common form statutory provisions, and we do not think that this Court, in stating the principle applicable to criminal appeals, was intending to import the common law rules as to the grant of new trials in civil cases. It is more probable that the Court in Stokes v. The Queen simply regarded the position of the High Court, when acting as a Court of Criminal Appeal from the Territories, as being the same as that of a Court of Criminal Appeal in a State. (at p530)

8. Under the statutory provisions in the common form modelled on s. 4(1) of the Criminal Appeal Act 1907 (U.K.), a Court of Criminal Appeal in a State is required to allow an appeal if it considers that the verdict is unreasonable, or cannot be supported by the evidence, or that the judgment of the trial court should be set aside on the ground that there was a wrong decision on a question of law, or that on any ground there was a miscarriage of justice, subject to the proviso that the court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. By an amendment made to s. 4(1) in 1966, the Court of Criminal Appeal in England was empowered to set aside a verdict on the ground that under all the circumstances of the case it was unsafe or unsatisfactory. Long before that date it had been held in Australia that the Court of Criminal Appeal of a State, acting under the legislation in the common form without amendment, had the power and duty to set aside a verdict which it considered to be unsafe or unsatisfactory. For if the court considers that a verdict is unsafe or unsatisfactory it must follow that it would be a miscarriage of justice to allow the verdict to stand. In McKay v. The King (1935) 54 CLR 1, at p 10 , Dixon J. said that a conviction based on confessional evidence which might appear sufficient to submit to a jury "would doubtless be quashed if it appeared that the jury had been allowed or encouraged to act upon views of it which are unsafe". In Davies and Cody v. The King (1937) 57 CLR, at p 180 where a verdict was set aside because the evidence of identification was regarded as unsatisfactory, the Court said:

"From the beginning, that court (the English Court of Criminal Appeal) has acted upon no narrow view of the cases covered by its duty to quash a conviction when it thinks that on any ground there was a miscarriage of justice, a duty also imposed upon the Supreme Court of Victoria . . . It has consistently regarded that duty as covering not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it 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 misled." (at p531)

9. In Raspor v. The Queen (1958) 99 CLR 346, at pp 350-352 and Plomp v. The Queen (1963) 110 CLR 234, at pp 244, 250 , it was recognized that a court of criminal appeal may interfere with a verdict which is unsafe or unsatisfactory even if there is sufficient evidence to support it as a matter of law, and even though there has been no misdirection, erroneous reception or rejection of evidence, and no other complaint as to the course of the trial. In other words, even if there is some evidence on which a reasonable jury might be entitled to convict, a Court of Criminal Appeal has the responsibility to consider whether "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand": Hayes v. The Queen (1973) 47 ALJR 603, at p 604 . The power and duty of a Court of Criminal Appeal in Australia to set aside a verdict if for any reason it considers that it would be unsafe or dangerous to allow the verdict to stand was well established before the Federal Court of Australia Act was passed. In the light of modern experience such a function is essential, and we cannot believe that the Parliament intended that the Federal Court should be more restricted in determining criminal appeals. (at p532)

10. For these reasons, in our opinion, the Full Court of the Federal Court, on appeal from the Supreme Court of a Territory, has the power and duty to set aside the verdict of a jury in a case where a miscarriage of justice has occurred, including a case where it would be unsafe or dangerous to allow the verdict to stand. The decision to the contrary in Duff v. The Queen was, in our respectful opinion, erroneous. (at p532)

11. In the recent case of Whitehorn v. The Queen (1983) 152 CLR 657 the Court again affirmed that a verdict may be set aside as unsafe and unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted. Dawson J. (1983) 152 CLR, at p 686 (with whom Gibbs C.J. and Brennan J. expressed general agreement on this aspect of the case) said that the question which an appellate court has to decide when called on to consider whether a verdict ought to be set aside because it would be unsafe, unjust or dangerous to allow it to stand is "whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". He did not accept the correctness of what was said by Barwick C.J. in Ratten v. The Queen (1974) 131 CLR 510, at p 516 :
"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." Dawson J. said in Whitehorn v. The Queen (1983) 152 CLR, at p 687 :

"In many cases it may be unnecessary to make such a distinction because a doubt experienced by an appellate court will be a doubt which a reasonable jury ought also to have experienced."

However he went on to point to the important differences between the position of a jury and that of a Court of Criminal Appeal and concluded (1983) 152 CLR, at p 688 : "It is far from inconceivable that a court of appeal may, upon the material before it and without regard to the verdict of the jury, entertain the possibility of a doubt itself but may properly conclude that the jury might reasonably have reached a verdict of guilty upon the evidence given at the trial. Where a result may have turned wholly or largely upon questions of credibility or upon competing inferences such may well be the case . . .. A court of criminal appeal should conclude that a verdict is unreasonable or cannot be supported having regard to the evidence if, on the evidence, it considers it to be unsafe or unsatisfactory. The verdict will be unsafe or unsatisfactory if the court of appeal concludes that the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal." (at p533)

12. It may at first sight be thought that the opinion expressed by Barwick C.J. in Ratten v. The Queen (1974) 131 CLR, at p 516 as to the powers of a Court of Criminal Appeal was the same as that accepted by the English courts as to the effect of the amended statutory provision. In Reg. v. Cooper (Sean) (1969) 1 QB 267, at p 271 Widgery L.J., giving the judgment of the Court of Appeal, said:

"However . . . we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it."

That passage was approved by the House of Lords in Stafford v. Director of Public Prosecutions (1974) AC 878, at p 892 . However in Hayes v. The Queen (1973) 47 ALJR, at p 605 , Barwick C.J. said that he did not take the view that the function of a court under the provisions in the common form in force in Australia was the same as that which the Court of Appeal in Reg. v. Cooper (Sean) had decided was to be performed under the amended statute. In Ratten v. The Queen (1974) 131 CLR, at pp 515-516 , he said:

"This decision (Hayes v. The Queen) 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 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."

It is unnecessary to consider whether the jurisdiction exercised by Courts of Criminal Appeal in Australia is precisely the same as that exercised by the Court of Appeal in criminal cases in England under the amended statute. It seems to us that the proper test to be applied in Australia is, as Dawson J. said, to ask whether the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, i.e. must have entertained a reasonable doubt as to the guilt of the accused. To say that the Court of Criminal Appeal thinks that it was unsafe or dangerous to convict, is another way of saying that the Court of Criminal Appeal thinks that a reasonable jury should have entertained such a doubt. The function which the Court of Appeal performs in making an independent assessment of the evidence is performed for the purpose of deciding that question. The responsibility of deciding upon the verdict, whether of conviction or acquittal, lies with the jury and we can see no justification, in the absence of express statutory provisions leading to a different result, for an appellate tribunal to usurp the function of the jury and disturb a verdict of conviction simply because it disagrees with the jury's conclusion. We do agree that in many cases the distinction will be of no practical consequence; it will be merely a matter of words. That will not generally be the case where questions of credibility are decisive. However, whether it matters from a practical point of view or not in a particular case, it is not unimportant to observe the distinction - the trial is by jury, and (absent other sources of error) the jury's verdict should not be interfered with unless the Court of Criminal Appeal concludes that a reasonable jury ought to have had a reasonable doubt. (at p534)

13. The final question of law that arises is whether, in a case where the evidence is circumstantial, each fact on which an inference is sought to be based must itself be proved beyond a reasonable doubt. In considering this matter it is necessary to keep distinct a number of questions which tend to be confused. In the first place, the question arises whether the proper method of approach to the facts is for the jury to consider each item of evidence separately, and to eliminate it from consideration unless satisfied about it beyond reasonable doubt. Support for the view that that is the correct approach is to be found in an article on "Circumstantial Evidence" by Mr. T. C. Brennan K.C. which appears in the Australian Law Journal, vol. 4 (1930), p. 106, where the learned author, in the course of discussing a criminal trial held two or three years before in Victoria, said, at p. 108:
"Mr. Acting Justice Dixon (as he then was), told the jury that the proper method of approach to the different facts was to take each one separately, and to ask 'are we satisfied beyond reasonable doubt about (1)? If yes', continued his Honour, 'put it on one side for further consideration with the other facts; if no, put it out of your mind altogether. Then go on to consider (2) in the same way.'"
What Dixon A.J. (as he then was) said, if the report is correct, may have been appropriate in the circumstances of the particular case, but it is clearly not right as a general rule. The duty of the jury is to consider all the facts together, at the conclusion of the case. (at p535)

14. We have no doubt that the position is correctly stated in the following passage in Reg. v. Beble (1979) Qd R 278, at p 289 , that "It is not the law that a jury should examine separately each item of evidence adduced by the prosecution, apply the onus of proof beyond reasonable doubt as to that evidence and reject if they are not so satisfied". At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence: cf. Weeder v. The Queen (1980) 71 Cr App R 228, at p 231 . (at p535)

15. Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider "the weight which is to be given to the united force of all the circumstances put together": per Lord Cairns, in Belhaven and Stenton Peerage (1875) 1 App Cas 278, at p 279 , cited in Reg. v. Van Beelen (1973) 4 SASR 353, at p 373 ; and see Thomas v. The Queen (1972) NZLR 34, at pp 37-38, 40 and cases there cited. In Plomp v. The Queen (1963) 110 CLR 234 it was argued that the motives of the accused could not be considered until it was shown by evidence that in some physical way his actions were responsible for his wife's death. The Court rejected this argument. Dixon C.J. said (1963) 110 CLR, at p 242 :
"All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done." (at p536)

16. It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see Luxton v. Vines (1952) 85 CLR 352, at p 358 ; and Barca v. The Queen (1975) 133 CLR 82, at p 104 ). The statement by Lord Wright in Caswell v. Powell Duffryn Associated Collieries, Ld. (1940) AC 152, at p 169 , that "There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish" is obviously as true of criminal as of civil cases. The process of reasoning in a case of circumstantial evidence gives rise to two chances of error: "first from the chances of error in each fact or consideration forming the steps and second from the chance of error in reasoning to the conclusion": Morrison v. Jenkins (1949) 80 CLR 626, at p 644 . It seems to us an inescapable consequence that in a criminal case the circumstances from which the inference should be drawn must be established beyond reasonable doubt. We agree with the statement in Reg. v. Van Beelen (1973) 4 SASR, at p 379 , that it is "an obvious proposition in logic, that you cannot be satisfied beyond reasonable doubt of the truth of an inference drawn from facts about the existence of which you are in doubt". (at p536)

17. In Reg. v. Van Beelen, which was a case of murder, the direct evidence was insufficient without certain scientific evidence to permit the case to be left to the jury. The scientific evidence was that certain trace materials (fibres, foraminifera, paint chips and hairs) found on or about the deceased girl were similar to other trace materials found on or about the accused. For example, fibres found on the girl's singlet were said to be similar to those from the accused's pullover. The Court of Criminal Appeal of South Australia had to consider two questions: first whether there was sufficient evidence to support a conviction, and, secondly, whether there had been a misdirection in the summing up. The first question depended on whether it was open to the jury to infer, from the fact that in a number of instances the trace materials on the deceased and on the accused could have originated from the same source, that they did so originate, notwithstanding that the individual identity of any one set of trace material, considered in isolation, was not proved beyond reasonable doubt. The Court held that the inference could be drawn by the jury. The second question was whether it was correct to direct the jury in effect that they could draw an inference of guilt from primary evidence as to whose existence they were in doubt. The Court held that it was a misdirection to instruct the jury in that way. The Court said (1973) 4 SASR, at p 374 :

"But the requirement of proof beyond reasonable doubt relates to the final stage in the process; the jury is not, in our view, required to split up the various stages in the process of reasoning leading to the conclusion of guilt beyond reasonable doubt and to apply some particular standard of proof to each of those steps . . . and to instruct them to do so would, in our view, be confusing and possibly misleading and would tend to the imposition of an artificial and scholastic strait-jacket on their deliberations.

That, of course, does not mean that they ought to be encouraged or permitted to draw inferences of guilt from doubtful facts. As a matter of common sense it is impossible to infer guilt beyond reasonable doubt from facts which are in doubt. There is a clear distinction between drawing an inference of guilt from a combination of several proved facts, none of which by itself would support the inference, and drawing an inference of guilt from several facts whose existence is in doubt. In the first place the combination does what each fact taken in isolation could not do; in the second case the combination counts for nothing." (at p537)

18. It is clear that the first part of this statement was not intended to contradict the second. It refers only to the manner in which the jury should be directed. It is quite correct to say that the jury are not required to split up the various stages in the process of their reasoning; they are not required to make findings on questions of primary fact, and jurors who agree in reaching the same ultimate conclusion may nevertheless disagree as to what evidence is to be accepted, or as to what inferences are to be drawn from evidence which they do accept. However that does not mean that the jury may draw an inference of guilt from a fact which is not proved beyond reasonable doubt. In Reg. v. Van Beelen, the Court went on to say (1973) 4 SASR, at p 375 :
"We think, as we shall develop later, that the jury should be told that they can draw inferences only from facts which are clearly proved, but further than that it is neither necessary nor desirable to go. There may not be much difference between telling them that and telling them that they can draw inferences only from facts proved beyond reasonable doubt, but there is authority in favour of the first proposition and authority against the necessity for the second proposition. Of course we do not say that it would be a misdirection to tell the jury that they can draw inferences only from facts which are proved beyond reasonable doubt." (at p538)

19. Sir Richard Eggleston in Evidence, Proof and Probability, 2nd ed. (1983), at p. 122, expresses the view that this statement is erroneous. With all respect we do not agree with the criticism of the learned author, but it must be understood that the Court was intending to say that inferences cannot be drawn from facts that remain doubtful at the end of the jury's consideration, and did not mean that facts which, viewed in isolation, seem doubtful must be disregarded. However, in our opinion, it must follow from the reasoning in Reg. v. Van Beelen that the jury can draw inferences only from facts which are proved beyond reasonable doubt. The Court in that case shrank from that logical conclusion, and referred instead to "facts which are clearly proved", only in deference to the authority of Reg. v. Grant (1964) SASR 331 , a decision which bound them but does not bind this Court. (at p538)

20. As the Court in Reg. v. Van Beelen recognized (1973) 4 SASR, at p 379 there is little direct authority for the proposition that primary facts from which an inference of guilt is to be drawn must themselves be proved beyond reasonable doubt. In Moss v. Baines (1974) WAR 7, at p 11 Burt J. accepted as correct the submission that "every fact necessary to be proved to sustain proof beyond reasonable doubt of every element of the offence charged must itself be proved beyond reasonable doubt". Perhaps some support for the same view is to be found in Reg. v. Stuckey (1959) 76 WN (NSW) 560 . Irrespective of authority, for the reasons we have given, we consider that in principle that view is correct. If McEndoo v. The Queen (1980) 5 ACrimR 52 and Carn v. The Queen (1982) 5 ACrimR 466 decide the contrary we cannot accept them as correct. In the United States there is a conflict of authority on the question, and we do not share Wigmore's apparent preference for the view that it is only the whole issue (or the elements of the offence) that must be proved beyond reasonable doubt (Wigmore on Evidence, 3rd ed. (1940), vol. IX, at p. 324). (at p539)

21. In the present case we have indicated that we would not grant special leave to appeal on the grounds which relate to suggested misdirections. We are however concerned with the questions that we have just discussed because, in deciding whether the evidence as a whole is capable of safely sustaining an inference of guilt, it will be necessary to consider what were the primary facts of which the jury were entitled to be satisfied beyond reasonable doubt. Having regard to the conclusion which we ultimately reach, this final question which we have discussed may not be crucial in the present case. (at p539)

22. It now becomes necessary to refer to the evidence to which these principles must be applied in the present case. At the time of the alleged crime Mr. and Mrs. Chamberlain were aged thirty-eight and thirty-four respectively. They were persons of good character; Mr. Chamberlain was an ordained pastor of the Seventh Day Adventist Church and (as is relevant to mention) both of them appear to have held strongly to their faith. Mrs. Chamberlain appears from the evidence to have been a devoted and happy mother, and to have been in good health; her obstetrician observed no signs of post-natal depression. On 16 August 1980 they arrived at Ayers Rock, in the course of a holiday journey by motor car to Central Australia. With them were their two sons - Aiden, aged six years and ten months, and Reagan, aged four years and four months - and their daughter, Azaria, a normal, healthy baby two months old. The Chamberlains pitched their tent in a camping area where a number of other persons, hitherto strangers to them, were also camped. The Chamberlains' tent was about 20 or 30 metres to the east of a barbecue area which provided cooking facilities for the campers. The entrance to the tent faced the barbecue area. The Chamberlains' Torana car was parked on the southern side of the tent, close to it, and also facing towards the barbecue area. At about eight o'clock on the evening of 17 August Mr. and Mrs. Chamberlain, Aiden and Azaria were at the barbecue for the purpose of having their evening meal. Mrs. Chamberlain was nursing Azaria and seemed happy and cheerful. Reagan was in the tent, in bed and apparently asleep. Two other campers, Mr. and Mrs. Lowe, were also at the barbecue area, and both saw Azaria; at the trial it was common ground that the baby was then alive. Mrs. Chamberlain, carrying Azaria and followed by Aiden, left the barbecue area and walked in the direction of the tent, intending to put both children to bed. Her evidence as to what then occurred was as follows. She placed the baby, who was asleep, in a bassinet in the tent and tucked her under the blankets. Aiden said that he was still hungry, so she went to the car and got a tin of baked beans, went back to the tent and then, with Aiden, returned to the barbecue area. There is no doubt that she did return to the barbecue area, accompanied by Aiden and carrying the tin of beans and a tin opener, about five or ten minutes after she had left. She seemed normal and quite composed. No one saw any blood on her clothes or her person. (at p540)

23. The Crown case is that during this short absence from the barbecue area, Mrs. Chamberlain took Azaria into the car, sat in the front passenger seat and cut the baby's throat. According to the Crown, the baby's dead body was probably left in the car (possibly in a camera bag) and was later that evening buried in the vicinity by Mr. and Mrs. Chamberlain. (at p540)

24. Soon after Mrs. Chamberlain had returned to the barbecue area she again commenced to walk in the direction of the tent. According to the case for the defence, and according to some of the witnesses for the prosecution, she did so because Mr. Chamberlain had heard the cry of a baby from the tent. If the cry was that of Azaria, it is obvious that the Crown case cannot succeed. It is convenient to state first the account given in evidence by Mrs. Lowe, who had met the Chamberlains only that night, had no association of any kind with them, and obviously had no motive to tell anything but the truth, although her evidence of course could have been mistaken. Mrs. Lowe was asked what happened after Mrs. Chamberlain had returned to the barbecue with the can of beans, and gave this evidence:

"Well she was just standing there. I heard the baby cry, quite a serious cry but not being my child I didn't sort of say anything. Aiden said: 'I think that's bubbie crying', or something similar. Mike (Mr. Chamberlain) said to Lindy (Mrs. Chamberlain): 'Yes, that was the baby, you better go and check.' Lindy went immediately to check. I saw her walk along the same footpath that they'd been on. What happened next? . . . She was in the area on that footpath closest to where the car and tent was, only inside the railings, and yelled out the cry: 'That dog's got the baby.'"

Mrs. Lowe said that the cry which she first heard definitely came from the tent; and that she was positive that it was the cry of a small baby and not of a child. The cry was loud and sharp but seemed to stop suddenly. Mr. Lowe did not hear the baby's cry; he said that he was heavily engaged in conversation. He said that Mr. Chamberlain said to his wife: "Was that the baby?", that Mrs. Chamberlain went to check and that when she was about 5 yards away she cried out: "That dog's got my baby." Another camper, Mrs. West, was at the time in her tent which was near to that of the Chamberlains'. She heard from the direction of the Chamberlains' tent the growl of a dog and then, fairly soon afterwards (or, as she also said, five or ten minutes later), she heard Mrs. Chamberlain cry out: "My God. My God. A dingo has got my baby." Her husband, Mr. West, also heard the growl of a dog. (at p541)

25. The night was dark, but there was a yellow 100-watt flood lamp mounted on an upright near the barbecue area which illuminated the front of the tent and the car; the witnesses differed as to whether the effect of the lamp was to provide strong light or very poor light at and in the tent. However, people standing at the barbecue area might not have been able to see a dingo moving near the tent since their vision would have been obscured by the railings mentioned by Mrs. Lowe in her evidence, which were between the tent and the barbecue area, and by some low vegetation near them. (at p541)

26. Mr. Lowe described in his evidence what happened immediately after Mrs. Chamberlain cried out. He said:
"Well she (Mrs. Chamberlain) chased in a direction where she was pointing where she said a dog had gone, and then she veered back towards the tent and checked the tent to find out whether the child was still in the tent or not, but by this time of course the outburst had . . . raised a hue and cry and Mike and I raced from the barbecue site across to the tent and asked which direction the dog had gone, and we proceeded to search immediately."
The initial search was to the east of the tent, in an area of sand dunes. To make an effective search it was of course necessary to have light. Mrs. West said that Mr. Chamberlain, who seemed very distressed, came running up, patting his pockets and saying that he had lost the keys to the car - she thought that he wanted a torch which was in the car, but in his evidence he said that he needed the keys to switch on the ignition to enable him to use the spotlight. The keys were found later in the evening; Mrs. Chamberlain said that she had put them under a pillow in the tent, because she had no pockets, and that she did not remember her husband asking her for the keys. Someone gave Mr. Chamberlain a torch to enable him to commence the search. Another of the campers, Mr. Haby, said that Mrs. Chamberlain came to his "Kombi" van and said: "A dingo or a dog has taken my baby - have you got a torch? - I need a torch." He asked her how she knew and she replied that she had seen a dog or a dingo coming out of the tent when she was walking to the tent and that she looked in the tent and found that the baby was missing. Mr. Haby said: "Did you see the dingo-dog carry out the baby?", to which Mrs. Chamberlain replied: "No, it wasn't carrying anything." She told him that she thought the dog had gone in the direction of the sand dune, which Mr. Haby then proceeded to search. It appears that Mr. Haby, like some other witnesses, sometimes used "dog" and "dingo" as synonyms. Soon a large number of persons had joined in the search, including some police and the ranger in charge of the area (Mr. Roff). The baby was not found - her body has never been found. However, during the search a number of tracks apparently made by dingoes or dogs were observed. Mr. Haby found some tracks on the sand dunes to the east of the camp. One track was bigger than the others and easy to follow; it led to a place on the top of the ridge where, in his opinion, the dog or dingo had put something down; he said that it "had left an imprint in the sand which to me looked like a knitted jumper or woven fabric and then it obviously picked it up because it dragged a bit of sand away from the front and kept moving . . .". The impression which he saw in the sand was roughly oval in shape and about 7 inches by 5 or 6 inches in size. Near the imprint on the sand was a drop, which he said, could have been blood or saliva; it was dark in colour but not red. The place where these things were seen was about 100 yards from the tent. Mr Haby showed the imprint to the ranger and a policeman. The ranger, Mr. Roff, gave evidence that he was informed that a track had been found on the crest of a sandhill and he went to see it. He saw a drag mark of about 8 or 10 inches in width and followed it in both directions. He described the mark as follows:

"Well, it was a shallow drag mark and obviously something had been dragged along, and obviously in that track in areas there was dragging vegetation, leaves and grass material, and there were other points where I formed the impression, an object had been laid down, forming an impression, the pattern of which I related at the time in my mind, and I have had no occasion to change that concept; a pattern very similar to what I would relate or I did relate to a crepe bandage."

In cross-examination he said that the impression could have resembled a mark made by a knitted garment; the object which had been carried seemed to have been quite heavy and there were three areas where it had apparently been put down. Next day he saw the drag mark again; he joined a group of Aboriginals, who were following the tracks of a very large dingo, which they thought might be associated with the drag mark. Constable Morris also saw two sets of drag marks, one deep drag mark, possibly half an inch deep by half an inch wide, and the other a short and very shallow mark about one-eighth of an inch wide. The evidence does not definitely establish whether Messrs. Haby, Roff and Morris were describing the same mark, but the tracks seen by Messrs. Haby and Roff both led near to the Anzac Memorial, and may have been the same. That evening Constable Morris also saw on the right-hand (or southern) side of the tent some dog or dingo tracks that apparently ran eastwards, towards the sand dunes. On the following afternoon he saw tracks (apparently fresh) at the rear of the tent, at its very edge; the tracks could be seen only when one lifted the flap of the tent in the corner in which the bassinet had been standing. On that afternoon Inspector Gilroy saw some large paw prints not only at the rear right-hand corner of the tent, but also at the front, close to the tent - they appeared to be fresh. Mr. Roff saw no dingo tracks near the entrance to the tent on the night of 17 August, although he examined the entrance to the tent particularly to try to discover whether there were any dingo marks. The soil at the entrance was loose and sandy, and it had been disturbed by people who had been walking on it. (at p543)

27. A number of witnesses saw blood in the tent, although no one seems to have made a very thorough inspection of the tent or its contents that night. Most of the witnesses who looked into the tent described what they saw as spots or sprays of blood on blankets and other articles in the tent. Mrs. Lowe said that she saw "a dark red wet pool of blood", about 6 inches by 4 inches in size; no one else saw such a pool. Mr. Roff, on the other hand, saw no blood at all. The floor of the tent was practically covered by blankets, mattresses, sleeping bags and some other articles, and these were subsequently examined by Dr. Scott, whose evidence on this matter is not challenged. There were three stains of blood, the largest about half an inch across, on one blanket, and a thin smear on another; if Mrs. Chamberlain's evidence is true, these may have been the blankets in which Azaria had been wrapped. There were small quantities of blood on a sleeping bag. There was quite a large area of staining on a floral mattress, some smeared blood on a parka, and a spot of blood on a raincoat. The articles on which blood was found were in various parts of the tent, and no blood was found on any other things that had been in the tent at the time. In particular, there was no blood on the bassinet, which stood in a corner at the rear of the tent, and in which Azaria had allegedly been placed. An examination of the tent itself revealed some very small spots on the flyscreen and the rear window that were thought to be blood, but were not confirmed as such; there was also a spray pattern (which Dr. Scott thought was blood, but not human blood) on the outside of the right-hand (or southern) wall of the tent. No trail of blood was seen leading from the tent. It is common ground that the blood on some at least of the articles in the tent was foetal blood - a term we shall later explain - and was that of Azaria. The explanation suggested by the Crown for the presence of the blood in the tent was that it was transferred blood - in other words that it had come from the person or clothing of Mrs. Chamberlain when she had reentered the tent after having killed the baby in the car. On behalf of the Crown it was submitted that much more blood would have been expected in the tent if a dingo had seized the baby in its jaws and carried it from the tent. On behalf of the accused, however, it was submitted that the teeth of the dingo may have largely occluded the wounds made by its bite if it had held the baby in a firm grip. (at p544)

28. A pair of tracksuit pants, belonging to Mrs. Chamberlain, was subsequently sent by her for dry cleaning at Mount Isa. There were marks on the pants which resembled blood stains and which responded to the appropriate cleaning agent for blood. The marks were on the front and below the knee; the stains, or spots, appeared to be splattered or flicked on, and tapered off in size towards the bottom of the pants. The Crown case was that Mrs. Chamberlain must have been wearing the pants when she committed the murder. The evidence is clear that she was not wearing the pants either when she left the barbecue area carrying the baby or when she returned to it after she had obtained the tin of baked beans. If she killed the baby and was wearing the pants at the time of the murder, she must have donned them in the tent and taken them off again before she returned to the barbecue. She said that she did put the pants on about three-quarters of an hour or an hour after the baby had disappeared, because it was cold, and that she had thereafter worn them for a considerable time. No witness could remember her wearing them that night and Mrs. Whittacker said that during the evening Mrs. Chamberlain had no covering on her legs except socks. Another witness, Mrs. Elston, had, before the trial, made a statement in which she had said that she had seen Mrs. Chamberlain wearing pants some time after ten o'clock, but at the trial she could not remember whether Mrs. Chamberlain had worn the pants. The theory suggested by counsel for the accused was that the blood must have dropped on to the pants while they were lying folded in the tent. There was a conflict of evidence given by forensic experts on the question whether the stains could have been caused by a dingo carrying a bleeding baby, but evidence of that kind is a statement of inference rather than of expert opinion, and depends to some extent on conjecture. (at p545)

29. No witness saw any blood on Mrs. Chamberlain that night. The trackshoes which she was wearing may have had some blood on them but it was not proved that any other article of clothing that she wore that night was blood-stained. In September 1980 she handed the trackshoes to the police at Mount Isa and said that they had had blood on them but had since been washed and the tests for blood proved negative. Her explanation for the presence of blood was that it must have got on the shoes when she crawled inside the tent. (at p545)

30. After the alarm had been raised, and for the rest of the evening, Mrs. Chamberlain seemed distressed and shocked. For most of the evening, until the Chamberlains departed from the camp site at about midnight, Mrs. Chamberlain was in the company of other campers, who endeavoured to give her comfort. There were two or three occasions on which Mr. and Mrs. Chamberlain went away together - once (or twice) for about ten minutes, and once for about fifteen or twenty minutes. According to their own evidence, they did so to join in the search. No witness who saw them go appears to have thought their actions in any way remarkable, and no one saw either of them carrying anything like the body of a child or any implement for digging. Mr. Chamberlain's movements cannot be accounted for so precisely. However, it is apparent that it must have been very difficult for either Mr. or Mrs. Chamberlain to bury the body of the baby that night. If Mrs. Chamberlain killed the baby, it is most probable that she left the body in the car. If it had been left in or near the tent, it is hard to imagine that it would not have been found - a number of people went into, or looked inside, the tent: Constable Morris did so three times. If the body had been left in the car, there was a great risk that anyone removing it would be seen to do so. By that time a gaslight had been erected near the tent to provide some extra light. Mrs. West remained near the car from the time when the alarm was given until Mr. and Mrs. Chamberlain left the area, and Mrs. Lowe was also there until about 10 p.m., and neither saw anyone remove anything from the car. If Mrs. Chamberlain killed Azaria, the possibilities are that the body was buried that night, or that it was left in Mr. Chamberlain's camera bag in the car and buried on the following day. It is also possible that the body was buried that night, and that the baby's clothes were removed in the camera bag. If the body was buried that night, it is surprising that no one saw Mr. or Mrs. Chamberlain remove it from wherever it was secreted and carry it away; in the circumstances, if either had been carrying any sort of a bundle, or a camera bag, it could hardly have escaped notice. And if the body was buried in the dunes near to the camp - which, as will be seen, is a possibility - it is somewhat surprising, if the burial occurred that night, that the searchers found no sign of the freshly turned earth. If the body was left in the camera bag, it showed considerable sangfroid for Mr. Chamberlain to invite Mrs. Elston, who was a nurse, to accompany him in the Torana when he drove from the camp site to a motel. The question how and when the body was buried is a difficult one to answer, but the evidence shows that there were opportunities for Mr. or Mrs. Chamberlain to have buried the body either on 17 August or on the following day. (at p546)

22. In general and subject to what is said below, I am in agreement with the analysis of the expert evidence which is contained in the judgment of Jenkinson J. in the Federal Court. The most important effects of that expert evidence, viewed discretely, can be shortly stated for present purposes. It indicated that, as a matter of opinion rather than scientific demonstration, the blood that soaked the baby's jumpsuit around the neckline had probably flowed from a wound or wounds inflicted to the baby's neck by a sharp instrument. It established that scientific tests, which were carried out long after the baby's death and whose reliability is probable but open to reasonable doubt, showed the presence of foetal haemoglobin in a number of places in the Chamberlains' car including a spray pattern under the dashboard. It established that rents in the jumpsuit were caused not by a dingo's teeth but by cutting and stabbing with a sharp-edged and pointed instrument or instruments, such as a pair of scissors, and that such cutting and stabbing had occurred after the jumpsuit had been removed from the baby or her body. It indicated that the jumpsuit had been buried and rubbed in vegetation. The obvious inference from the expert evidence about the jumpsuit is that the damage to the jumpsuit resulted from some human action between the time when the baby was attacked and the time when the baby's clothing was discovered. It arguably follows from the above and other uncompelling evidence relating to the condition of the baby's clothing when and after it was found that, if, as the applicants asserted, the baby had been attacked and carried away by a dingo, the animal caused no discernible damage to the clothing and left no remaining hair in or on it. (at p623)

23. Mrs. Chamberlain's own evidence of her observations in the moment or moments before, without having reached the tent, she cried out that "That dog has got my baby" reads unconvincingly and contains what seem to me to be elements of striking improbability. The same can be said of the evidence of Mr. Chamberlain. There are some inconsistencies in detail between Mrs. Chamberlain's evidence on the trial and statements which she had previously made. If there had been no more to the case than the expert evidence and the evidence of Mr. and Mrs. Chamberlain, it would be difficult to see real force in the argument that the jury's finding that Mrs. Chamberlain had killed her child was unsafe and unsatisfactory. There is, however, independent and direct evidence of the circumstances surrounding the period of between five and ten minutes in which the Crown alleges that Mrs. Chamberlain murdered the baby. The most important of that evidence is that of Mr. and Mrs. Lowe who had first met Mr. and Mrs. Chamberlain less than an hour before the time of the alleged murder. They had had no previous association with the Chamberlains. Their credit was impunged by neither side. Their evidence, supported in some respects by the evidence of Mr. and Mrs. Whittacker, provides a basic factual context which is largely not in dispute. (at p624)

24. Mr. and Mrs. Lowe met the Chamberlains in a barbecue area in the vicinity of Ayers Rock around 7 p.m. on Sunday, 17 August 1980. Mrs. Chamberlain was nursing the baby, Azaria, whom she was trying to put to sleep. There was nothing in her demeanour to indicate that she was other than the loving mother of a normal child. Indeed, Mrs. Lowe, who appears to have observed her closely, gave evidence that "she sort of had a new mum glow about her". Around 7.50 p.m., Mrs. Chamberlain left the barbecue area carrying the sleeping baby. She was accompanied by the Chamberlain's son, Aiden, who was then six years old. She walked to the Chamberlains' small tent which had been pitched, alongside their car, some 20 metres away. If murder was committed, it was in the few minutes which followed. Mrs. Chamberlain gave evidence that she tucked Azaria in her bassinet at the back of the tent, that Aiden told her that he was still hungry, that she went to the car and obtained a tin of baked beans, and that she then returned to the barbecue area having a racing game with Aiden for the first few metres of the way. The Crown alleges that she took Azaria to the front passenger seat of the car and there cut her throat, wearing the bottom half of a tracksuit which was subsequently found by Mrs. Chamberlain to be spotted with blood. It is common ground that Mrs. Chamberlain in fact returned to the barbecue area between five and ten minutes after she left it. If Mrs. Chamberlain had murdered her baby, Mr. and Mrs. Lowe saw nothing to suggest it. In one hand, Mrs. Chamberlain carried the can of baked beans. She wore the same floral dress that she had worn when she left some few minutes earlier. The Lowes saw neither sign of blood on her or her clothes nor anything else unusual about her or her demeanour. At about 8 p.m., Mr. Chamberlain is said to have made a comment about hearing the baby cry. Mrs. Chamberlain walked towards the tent. It was as she drew near to it that she cried out that "that dog has got my baby". According to Mrs. Chamberlain, she had seen a dingo shaking its head as if it had something in its mouth at the entrance of the tent and had observed the empty bassinet within the tent. According to the Crown, her cry was the beginning of a facade of deceit, erected by Mrs. Chamberlain with the subsequent help of her husband, to conceal Azaria's murder. (at p625)

25. It is conceded by the Crown that it is an essential part of its case that, at the time Mr. Chamberlain is said to have made a comment about hearing the baby cry, Azaria had already been killed. If, in fact, a cry from Azaria was heard at that time, the Crown concedes that its case against the Chamberlains breaks down. Mrs. Chamberlain's evidence was that she herself did not hear a cry: she "was rattling the things" at the fire place in the barbecue area and had not heard anything until Mr. Chamberlain said "that he thought he heard Azaria crying or something to that effect". Mr. Chamberlain's evidence was that he thought he heard Azaria cry and said to Mrs. Chamberlain: "Is that Azaria?" His description of the cry is perhaps too tailored to the circumstances to be likely to excite confidence in its veracity: "It was an urgent cry, not loud. It cut off. It almost seemed as if the baby was being squeezed." Another of the four witnesses to give evidence about a baby's cry was Mr. Lowe. He said that he and Mr. Chamberlain "were heavily involved in conversation" when Mr. Chamberlain made some comment to his wife to the effect: "Was that the baby?" He himself did not hear any baby's cry. The other evidence is that of Mrs. Lowe. (at p625)

26. Mrs. Lowe comes from what she describes "as a family of nine and they always seem to be having children". At the time she herself had an eighteen months old child. She obviously had had considerable experience with babies. Her evidence as to what occurred after Mrs. Chamberlain had returned to the barbecue area with "a can of something in her hand" is clear and unqualified:
"I heard the baby cry, quite a serious cry but not being my child I didn't sort of say anything. Aiden said: 'I think that's bubby crying', or something similar. Mike said to Lindy: 'Yes, that was the baby.'"
Under further questioning, Mrs. Lowe gave evidence that she was "positive" that the sound she heard was the cry of a baby and that she was also "positive" that the cry "definitely came from the (Chamberlains') tent". As has been said the Chamberlains' tent was only about 20 metres away from the barbecue area. The Crown does not suggest that she could have heard the cry of some other baby. Unless Mrs. Lowe's clear and definite evidence that she heard the cry of a baby is rejected as mistaken, the Crown's case against the Chamberlains must fail. (at p626)

27. The jury in Darwin had the benefit of seeing and hearing Mrs. Lowe and the other witnesses give their evidence. This Court has not enjoyed that benefit. It may be that they formed a view that Mrs. Lowe was an unreliable witness. Perhaps they found support for such an assessment in the fact that Mrs. Lowe gave evidence about seeing a blood-stain in the Chamberlains' tent which conflicted with other evidence. On the other hand, conflicts in evidence about blood-stains in a small tent which was not high enough to permit an adult to stand erect and which was being entered by a number of people in a kneeling and crouching position are not surprising. Perhaps the members of the jury were influenced by the fact that Mrs. Lowe alone claimed to have heard Aiden make a comment about hearing the baby cry. One would, however, question the significance that could be placed upon a failure by Mr. and Mrs. Chamberlain and Mr. Lowe to remember, looking back over the events of that night, the comment of a six-year-old child. Speculation as to what the jury may or may not have thought is not inappropriate however in that it underlines the fact that a starting point of the inquiry whether this Court is of the view that the evidence failed to establish beyond reasonable doubt that Mrs. Chamberlain murdered her baby must be that the jury which was entrusted by the law with the determination of that question and which heard and saw the witnesses give their evidence decided that it did.
Proof of Intermediate Facts. (at p626)

28. There was some discussion in the course of argument as to whether a jury is precluded from taking account of, or drawing an inference from, a fact unless that fact is established beyond reasonable doubt. In the view I take, it is impossible to give a general theoretical answer to that question. There is certainly no requirement of the law that the members of a jury must examine separately each item of evidence adduced by the prosecution and reject it unless they are satisfied beyond reasonable doubt that it is correct. Nor is it the law that a jury is in all circumstances precluded from drawing an inference from a primary fact unless that fact is proved beyond reasonable doubt. If a primary fact constitutes an essential element of the crime charged, a juror must be persuaded that that fact has been proved beyond reasonable doubt before he or she can properly join in a verdict of guilty. Whether or not a juror must be satisfied that a particular fact has been proved beyond reasonable doubt will, however, otherwise depend not only on the nature of the fact but on the process by which an individual juryman sees fit to reach his conclusion on the ultimate question of guilt or innocence. If, for example, the case against an accused is contingent upon each of four matters being proved against him, it is obvious that each of those matters must be proved beyond reasonable doubt. Indeed, it would be appropriate for the presiding judge to emphasize to the jury in such a case that even a minimal doubt about the existence of each of those matters would be greatly magnified in the combination of all. On the other hand, if the guilt of an accused would be established by, or a particular inference against an accused could be drawn from, the existence of any one of two hundred different matters, each of which had been proved on the balance of probabilities, it would be absurd to require that a jury should disregard each of them unless satisfied, either in isolation or in the context of all of the facts, that any particular one of those matters had been proved beyond reasonable doubt. (at p627)

29. The circumstantial evidence upon which the Crown relied in the present case fell into three main groups: (i) the evidence of foetal haemoglobin in the car and camera case; (ii) the evidence of likely bleeding if a dingo had seized the baby's head and of the absence of large quantities of blood in the tent; and (iii) the evidence of the condition of the jumpsuit and singlet and the arrangement of the baby's clothes when they were found. Those bodies of evidence were cumulative. The jury was entitled to pay regard to all of them even if unpersuaded that any or all of them was proved beyond reasonable doubt. Thus, a conclusion that the evidence directed to showing the presence of foetal haemoglobin in the car was persuasive only to the extent of balance of probability does not mean that the conclusion and the evidence should be rejected as irrelevant. Even though that evidence, viewed discretely, does no more than establish the presence of foetal haemoglobin on the balance of probabilities, it remains part of the totality of the admissible and relevant evidence in the context of which the ultimate question whether Mrs. Chamberlain's guilt was established beyond reasonable doubt fell and falls to be determined.
Conclusion. (at p627)

30. I have found the question whether the evidence failed to establish beyond reasonable doubt that Mrs. Chamberlain murdered Azaria a difficult one. As the judgments in the Federal Court demonstrate, the circumstantial evidence against her was strong. There is much about the defence story of a dingo that strikes me as far-fetched. The Crown case against Mrs. Chamberlain was, however, neither comprehensive nor, in itself, impregnable. The body of the alleged victim was never found. The evidence established no motive for the alleged murder; to the contrary, it was to the effect that Mrs. Chamberlain was the loving mother of a normal child. Indeed, it would seem fair to comment that the Crown case was, perhaps of necessity resulting from the absence of both the baby's body and direct evidence against Mrs. Chamberlain, directed more to destroying Mrs. Chamberlain's defence of the dingo than to positively establishing her guilt. Much of the material upon which the Crown relied - camera bag, scissors, blood-stains on the tracksuit pants - was directly or indirectly volunteered by the Chamberlains. The evidence led by the Crown supported much of the Chamberlains' own account of the context in which the attack on Azaria occurred: it established that Mrs. Chamberlain was engaged in conversation at the barbecue area; that she was nursing Azaria "with a new mum glow about her"; that she left the area to put a sleeping Azaria to bed; that, within minutes, she returned to the barbecue area showing no sign of distress; that when she left and when she returned she was accompanied by Aiden, who was, apparently, also behaving quite normally; that when she returned she had a can of food in her hand for Aiden; that Mr. Chamberlain - who is not suggested to have been other than an accessory after the fact - made a comment about Azaria crying; that Aiden, in subsequent conversations that evening, indicated that he believed his mother's assertion that Azaria had been taken by a dingo. In that context, the Crown case (that, within the five to ten minutes while she and Aiden were together absent from the barbecue area, Mrs. Chamberlain put on tracksuit pants in preparation for her crime; took her baby to the front seat of the family car; there cut the baby's throat; and afterwards hid the body) strikes me as being, in its own less spectacular way, almost as unlikely as is the story of the dingo. And there remains the clear evidence that the baby was heard to cry after, according to the Crown case, she was dead. (at p628)

31. The expert evidence called by the Crown was contradicted at almost every point by expert evidence called by the defence. On one important and disputed matter, namely, that the damage to the jumpsuit was the result of cutting with a sharp instrument such as a pair of scissors after the jumpsuit had been removed from the baby's body, I consider that the Crown evidence was compelling notwithstanding expert evidence called by the defence. On other important questions, it was left to the jury to attempt to resolve disputes between well qualified experts. Those questions included whether the tests showing the presence of foetal haemoglobin in the Chamberlains' car were reliable, whether the blood-stains on the jumpsuit established that there had been wounds to the baby's throat, and whether there was a likelihood that the teeth of a dingo seizing the baby's head might have occluded any wounds so as to explain the absence of evidence of profuse bleeding in the tent. It is scarcely feasible that a compelling answer to any of those questions was to be found in observing and hearing the expert witnesses as they gave their evidence. It is certainly not, in my view, to be found in a careful examination of the transcript of evidence. (at p629)

32. In the Federal Court, Jenkinson J. examined the evidence relating to the damage to the jumpsuit and concluded that the clear inference was that the damage was the result of human action after the baby's death. As I have indicated, I agree with his Honour in that regard. Jenkinson J. went on to conclude that no hypothesis of an unexplained intervention by any person other than the Chamberlains was within the realm of the reasonably possible. While I am conscious of the force of the reasoning which led his Honour to that conclusion, it is a conclusion that I find myself unable to share. There is an obvious element of the bizarre in any suggestion that the damage to the jumpsuit may have been caused by the unexplained intervention of some unknown person in the days that elapsed between the attack on Azaria and the finding of her clothes in the desert lands around Uluru. In this case of the bizarre however, I am unpersuaded that it is plain beyond reasonable doubt that that damage was not caused by some such unexplained intervention. The unlikeliness of such intervention is a factor, and an important cumulative factor, to be taken into account in deciding whether the evidence established Mrs. Chamberlain's guilt beyond reasonable doubt. It is not, in my view, decisive of that question. (at p629)

33. At the end of the day, the issue whether the evidence established guilt beyond reasonable doubt resolves itself, to no small extent, into questions of the overall effect of conflicting expert evidence, of the inferences to be drawn from the expert and other circumstantial evidence and of weighing circumstantial evidence and the inferences to be drawn from it with and against the direct evidence of the Chamberlains and Mrs. Lowe. In examining the evidence at the appellate level, those questions must be approached on the basis that the jury, whose function it was to determine whether guilt was proved beyond reasonable doubt, decided, after hearing the evidence, that it was. Involved in the jury's verdict was a rejection of the evidence of the Chamberlains and of the evidence that Azaria was heard to cry after the Crown alleges she was dead. Doing the best that I can, I have finally come to a firm view that, notwithstanding the jury's verdict of guilty, the evidence did not establish beyond reasonable doubt that Mrs. Chamberlain killed Azaria. That being so, the verdict that she was guilty of murdering her child is unsafe and unsatisfactory and constituted a miscarriage of justice. It necessarily follows that the evidence failed to establish beyond reasonable doubt that Mr. Chamberlain was guilty of the crime of which he was convicted.
Orders. (at p630)

34. I would, in the case of each application, grant special leave to appeal, allow the appeal, set aside the judgment and orders of the Federal Court and in lieu thereof order that the verdict of guilty be set aside and the conviction quashed. (at p630)

Orders

Applications for special leave to appeal granted.

Appeals dismissed.