“LAW AND FORENSIC SCIENCE IN THE CRIMINAL TRIAL PROCESS: THE LINDY CHAMBERLAIN CASE”
Dr T Raymond
Director, National Institute of Forensic Science.
1.0 BACKGROUND AND HISTORY
See the presentation of Mr Chester Porter QC.
Early on Sunday morning 1 February 1986, a partly dismembered decomposing body of a white male person was found at the base of Ayers Rock several kilometres around from the public climbing area. The body was later identified as being that of a 31 year old English tourist who had been missing for about one week.
In the search associated with collecting evidence on the cause of the death of the English tourist, a baby’s matinee jacket was found. Lindy Chamberlain had always maintained that the baby had been wearing a matinee jacket. A jacket was found on the ground in the scrub 150 metres west of where Azaria Chamberlain’s clothing had been located five and a half years previous. Lindy Chamberlain was released from prison and a ‘Royal Commission of Inquiry into the Chamberlain Convictions’ established.
The Melbourne State Forensic Science Laboratory (SFSL) (now the Victoria Police Forensic Services Department) was appointed the Scientific Agency for the Royal Commission after weeks of high level wrangling, interviews and rule setting. Constraints not normally imposed on such inquiries were the norm. The author was made the scientific focal point for the Commission. The SFSL operated under a high trust model on behalf of a Commission that allowed it a significant level of autonomy in respect of evidence examination and analysis, prioritisation etc.
However, both the prosecution and the defence were to be allowed to have present at any stage, any number of external experts. This proved to be a mammoth task and at times, required the author to have a mediation role in addition to the scientific role. It also proved to be very difficult to enable all interested scientific parties to adequately view and deliberate on the potential evidence. Additional multi-viewing devices, microscopes with multiple heads, video cameras mounted to operating microscopes with multiple screens, were sometimes the norm. In fact on one day, the author had 16 people other than himself, holding court on the damage to the matinee jacket!
2.0 POTENTIAL EVIDENCE ‘INFLUENCES’ AT THE COMMISSION
Undoubtedly one of the most difficult factors to contend with was the fact that in many instances, medical or scientific inferences and conclusions had been arrived at through insufficient and incorrect information that sometimes lacked context. Nonetheless, many of the original key players in the committal and trial would not easily concede an error or oversight, even when faced with the compelling alternatives.
The second major concern was that items/exhibits still held by Government Departments may have been tampered with innocently or deliberately prior to arrival at the SFSL. Monitoring that and validating the evidence proved to be a problem in itself!
Thirdly, it appears to be stating the obvious that time erodes ones memory. For instance it is very difficult to divorce oneself from the present (font of knowledge and experience) and extrapolate this knowledge base back six years. To evaluate the exact meaning and interpretation one placed on results six years prior when procedures may have changed, is very difficult unless the scientific examination and analysis had been fully documented and recorded which they had not. This is particularly the case when the media profile is significant and enduring.
This is perhaps best illustrated by Mr Max Scott, the scientist in Darwin at the time whose recollections (in the absence of his notes and statement) were totally contrary to his original data and conclusions. To quote Mr Scott (24 July 1986). ‘My confidence in the recollections which I was relying on for my statement of 4 July 1986, has been severely shaken by the way in which some of those memories flatly contradict what appears in my notes. I would have to say that I really do not remember very much at all’.
3.0 SCIENTIFIC ISSUES
3.1 The Car
The presence or absence of foetal blood in the Torana sedan (or any blood for that matter), was an issue of prodigious debate. (It must be appreciated by the reader, that all referred tests were carried out at least 13 months after the disappearance of the child).
Firstly, the infamous blood stain pattern on the metal plate originating from the lower nearside dashboard support region had been confirmed in 1982 as ‘blood splash’ by a number of eminent medical practitioners. This was almost certainly a direct result of being told that there was foetal blood on the plate. In fact, no blood (let alone foetal blood), was ever detected on top of the sound deadener, or indeed, anywhere else in the car at the time of the Commission.
The so-called ‘arterial spray’ material was determined by analysis to contain bitumen, asbestos and a calcium compound – all basic ingredients of sound deadener. A fine mist of paint particles precipitated by the duco process were also apparent on top of the sound deadener.
The original trial scientist, Mrs Joy Kuhl obtained positive (ortho-tolidine) presumptive tests for blood in a number of areas in the Torana – including the carpet, bolt hole region, nearside seat hinge, console and items that were purported to have been in the car – a chamois, a towel and a pair of nail scissors. Some of these areas were incidentally inaccessible without the removal (using appropriate screwdriver) of surface panels. The use of ortho-tolidine reagent was driven by the belief that it was a reliable and definitive test for blood when used in experienced hands. This is both misleading and untrue – particularly where old denatured blood is concerned. The Chamberlains lived in a copper mining town and copper is known to be one element that yields false positive results with ortho-tolidine reagent! Unfortunately early statements actually stated that ‘traces of blood were detected’ on the strength of these presumptive reactions alone.
Mrs Kuhl further tested her samples and extracts and detected foetal blood in a number of regions using in the main, crossover or counter current electrophoresis. Six years later, not one positive Kastle Meyer presumptive test or Haemochromagen test was obtained in any of the contentious areas, nor was there a single positive Ouchterlony (Double Diffusion) result; but six years on, spurious crossover results were obtained. Crossover electrophoresis interpretation is very difficult if inexperienced – particularly with old stains.
(It is notable that approximately 5 months after Mrs Kuhl’s work, duplicate samples from the car were sent to Mr Bryan Culliford acting on behalf of the prosecution and Dr Patrick Lincoln on behalf of the defence. Mr Culliford stated that he detected blood in the majority of the samples sent – Dr Lincoln stated that he either did not detect blood or that he detected non-specific reactions! Both were highly respected forensic biologists at that time.
Nonetheless, Mrs Kuhl’s results off the seat hinge could not be easily explained away. In fact the author was shown a coloured photograph in the courtroom that had mysteriously appeared, previously unseen, with staining on it which certainly had the appearance of blood. Given the results of material off the hinge, I said in court that I found it difficult to conceive that someone with even one years experience could make a mistake of the magnitude required to throw in doubt, all of Mrs Kuhl’s results.
There is no doubt that the destruction of the plates and the absence of photographic documentation did not assist a resolution.
3.2 The Jumpsuit and Singlet
The damage to the jumpsuit was examined by Professor Chaikin (University of NSW) who relied on scanning electron microscopy alone to draw his conclusions. Professor Chaikin’s contention that ‘tufts’ (or ‘snippets’ if tiny) could only be associated with a knitted fabric, cut by scissors, proved to be incorrect. In fact any abrasive action of two surfaces (including dingoes’ teeth) had the same effect.
The phrase ‘planar array’ was used as an expression to describe fibre ends within a yarn and successive yarns ending in the same plane. ‘Planar arrays’ is one element that may be used to indicate ‘cuts’. However, it was shown that the carnassial teeth of a dog/dingo could on occasion reproduce ‘planar array’ damage. Unfortunately there were no SEM micrographs with which to make a comparison. Indeed, the jumpsuit had been so prodigiously handled between the Trial and the Commission, that it was often difficult to give credence to the physical phenomena still exhibited by the damaged areas of the jumpsuit!
There was one area that became the focus of considerable debate – namely the collar. The longest cut a dingo can make is 10mm, i.e. the length of its carnassial tooth. The angle cut consisted of a 20mm cut and a further cut of 10mm plus to an angle of 105o to the former. This required either that the dingo teeth cut twice or that the collar was folded in the mouth in such a way as to cleave the collar in one action. In the opinion of some, the weighting of the expert evidence tended to favour the crown on this point – namely human involvement. It was particularly important to the Commission to establish whether the non-elastic band in the yoke of the jacket had been severed – otherwise it would not have been possible to remove the jacket from the baby’s head unless the head itself had been removed!
The difficulty of making judgements on old manhandled exhibits was no better reflected than by the vest or singlet which manifested more puncture-type holes every time it was examined! Whether these holes were a result of insects, or previous damage where aging had finally caused the parting of the yarns in the fabric, is also open to debate.
3.3 The Handprints in Blood
Professor Cameron from the United Kingdom was of the view that the jumpsuit exhibited patterns that could be explained by hands shielding the fabric from a bleeding neck or head. Unfortunately, at the time of Commission examination, much of the red-brown caked material no longer adhered to the jumpsuit; however, most of the red-brown staining still resident on the jumpsuit was iron oxide (or haematite). Of course, if the matinee jacket was over the jumpsuit – Professor Cameron’s theory could not hold.
3.4 General Scientific Issues
There were a number of additional scientific analyses where on re-examination, errors appear to have been made; for instance:
(i) the hairs on the jumpsuit originally designated ‘probably cat in origin’, were redesignated ‘dog’. These were hairs (six in number) located on the singlet and in the tent. This new evidence caused Dr Harding, of Forensic Science South Australia, who gave the original evidence at the Trial, to reverse his opinion;
(ii) the soil evidence proved to be incorrect and misleading;
(iii) the small bone located in the nappy fragments was not located when first examined. Unfortunately its species origin could not be determined.
1. the botanical evidence was not entirely correct and again misleading.
3.5 The Matinee Jacket
The origin of the matinee jacket that precipitated the Commission, being new evidence, was ultimately not in dispute.
To try to show that the jacket was indeed that identified by Mrs Chamberlain proved to be a laborious task. However, a number of positive indicators pointed to its authenticity:
(a) the jacket was extremely weathered, patchy and matted.
(b) the staining on the jumpsuit hands relative to the almost absence of staining on the arms (indicating that the jacket had been worn over the jumpsuit at the time the blood was let) .
(c) two tufts of cotton fibres, similar in fibre number and twist to tufts of cotton fibres removed from the Azaria jumpsuit and a reference jumpsuit, were detected on the jacket.
(d) U.V. fluorescence showed the jacket to have had a yellow pattern along the bottom fringe and the cuffs (as per the Chamberlains’ statement).
(e) the damage to the yoke of the garment was in the same vertical line as the damage to the collar of the Chamberlain jumpsuit.
(f) some of the botanical material located on the jacket had not, as a result of seasonal environmental changes, been observed in the region for the previous five years. (Much of the botanical material on the jacket was calotis hispidula (bogan flea) which is ground hugging (10 centimetre maximum) and has no adaptation for wind or water disposal; that is, the fragments were on the jacket when it arrived at the spot where it was discovered.
(g) positive ortho-tolidine and Kastle-Meyer presumptive tests were obtained in the stained area of the yoke region.
The major problems associated with this item included making comments on possible blood stains – the presence of which could not be confirmed – and the fragility of the jacket that was literally falling to pieces with handling.
It is a matter for the record that this case was pursued at the highest level in the Territory with considerable zeal. It was this enthusiasm which precipitated forensic analyses in two States and one Territory in Australia, at numerous University and State Departments – not to mention the work carried out in the United Kingdom.
In his Report, Commissioner Morling stated that ‘In my opinion, if the evidence before the Commission had been given at the Trial, the trial judge would have been obliged to direct the jury to acquit the Chamberlains on the grounds that the evidence did not justify their conviction’.
Suffice it to say that there are a number of lessons to be learnt. The author is of the belief that if Mrs Kuhl’s plates allegedly confirming the presence of foetal haemoglobin had been kept or photographed and Professor Chaikin’s ‘planar arrays’ had been photographed, a number of major areas of conflict may have been easily and equitably resolved. There is a case for keeping all notes and records in perpetuity as the author was frequently asked to comment on people’s recollection of tests used – a difficult and unsafe task.
The case reinforced the need for experts to remain within their fields of expertise. In the words of the Commissioner, ‘It can be seen that some experts who gave evidence at the Trial were over-confident of their ability to form reliable opinions on matters that lay on the outer margin of their fields of expertise’. He further criticised: ‘Some of their opinions were based on unreliable or inadequate data’.
There is also a very strong argument for an integrated laboratory where cross-fertilisation of information and ideas is the norm. The positive attributes of a laboratory which functions as an entire service to the judicial process is self-explanatory.
It is always worth restating the necessity to divorce the standards of proof necessary in the investigative phase and those required by the judiciary. That too proved to be the undoing of some of the scientists involved in the case.
On a positive side, the Chamberlain saga has raised the standards of proof in many of the forensic laboratories nation wide and brought about a better and more uniform quality management approach to forensic examinations and analyses. It also gave further impetus to the formation of:
- The Senior Managers of Australia and New Zealand Forensic Laboratories who have steadfastly tried to pursue best practice collegiately;
- A set of standards required for laboratory accreditation (administered by the National Association of Testing Authorities); and in 1991,
- To the establishment of a National Institute of Forensic Science (NIFS) under the auspices of the Australasian Police Ministers Council, responsible for forensic science research, training/education, information exchange and quality. The Royal Commission (through Justice Morling and Mr Chester Porter QC), together with (Ret) Chief Justice John Phillips who defended Mrs Chamberlain at the trial, helped champion the need for a NIFS and made a significant contribution to its genesis.
Footnote: In 2004, Mrs Lindy Chamberlain, now Mrs Lindy Chamberlain-Creighton, reissued her autobiography, “Through My Eyes”. The book was also run as a TV mini-series. Coincidentally, just before the series, a Melbourne man, Mr Frank Cole (78) claimed that he and his three mates had been near the Rock on the 17th August 1980. He claimed that he had left their camp at dusk to shoot a rabbit to feed his dog. He actually mistakenly shot a dingo that, he said, unbeknownst to him, had a baby in its mouth! He and his mates buried the baby in a backyard in Melbourne but did not want to tell the story because it was illegal to discharge a firearm at Uluru and they did not want to get into a trouble.
Following inquiries by the author, it is believed that the Victoria Police and the Northern Territory police are not proceeding with their investigations.
Copyright 2005. Greek/Australian International Legal and Medical Conference.
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