What does ASADA’s failed prosecution of the 34 Essendon Players and the famous Lindy Chamberlain case have in common? Both decisions apparently applied the principle that you need to prove each material fact in a circumstantial evidence case to win.
Under Australian law, this analytical approach, often called proving ‘links in a chain’, can be relevant to some types of circumstantial criminal cases. However, the ‘strands in a cable’ approach, which invites a different reasoning process based on looking at the overall weight of the evidence, is easier to apply and generally preferred.
For readers who would prefer to ‘cut to the chase’, Section F contains a synopsis of conclusions which apply to the Essendon CAS Decision. For readers who want to explore the legal path by which these conclusions were reached, read on.
Hindsight is a wonderful thing, and we are looking at ASADA’s judgment calls from afar. That said, it is worth asking: Why did ASADA rely on the less contemporary, and more difficult to prove ‘links in a chain’ analogy before the AFL Tribunal? Why did ‘strands in a cable’, a conventional and accepted analogy in Australian criminal law, not make an appearance until WADA’s skeleton argument prior to the CAS hearing of its appeal?
For the avoidance of doubt, barristers did not make up the ‘links in a chain’ and ‘strands in a cable’ concepts in the Qantas Business Class Lounge before the Essendon hearings. As noted by the Panel in the CAS decision, the terms derive from Wigmore who, in his “classic treatise on the Law of Evidence” distinguished between these two analytical methods (para 108).
A. 1984: Lindy Chamberlain’s importance to this story
Let’s look at the Lindy Chamberlain case to understand the development of these concepts, that the two engineering metaphors are not the same thing, and why they can lead to different results.
As the smash hit Netflix documentary series Making a Murderer has taught us, there are many complex tales of injustice in the legal world. Perhaps the Essendon saga is one of them. Many believe so. The Lindy Chamberlain case deserves its own place in this unwelcome group.
Mrs Chamberlain was accused of murdering her two month-old daughter Azaria on a family camping trip to Ayres Rock in 1980 by slashing her throat with scissors and then hiding the body. She repeatedly denied harming Azaria, insisting that the child had been carried off and killed by a dingo.
This was a circumstantial case. There was no direct evidence of, say, a witness who saw Mrs Chamberlain stabbing her daughter. The evidence consisted of bits and pieces, such as:
- evidence of foetal haemoglobin in the car and under the dashboard of the accused and in their camera case;
- 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 in which the deceased had been at the time; and
- evidence of the condition of the deceased’s jumpsuit and singlet and the arrangement of the deceased’s clothes when they were found.
Those who sat in judgment of Mrs Chamberlain were ordinary members of the community. These members of the jury were not County Court or Supreme Court judges. They were not eminent English barristers. They were not esteemed solicitor/advocates from Belgium. Their task, like that of juries in criminal cases every day, was to evaluate this evidence and determine whether or not, beyond reasonable doubt they regarded Mrs Chamberlain to be guilty.
Mrs Chamberlain’s demeanour during the trial has long been a point of controversy. Mrs Chamberlain was stoic. She did not fall apart under the weight of her grief as many would expect. Many people held this against her and considered it a sign that she did not care and was guilty of the alleged crime.
There were 12 members of the jury. Their notes suggest that their evaluation of the evidence was not very sophisticated. See, for example:
- “Doesn’t believe dingo” – female member of jury
- “Hard to accept Mrs C did it” – female member of jury
- Can’t believe Mrs C did it” – male member of jury
- “Probability dingo could do it” – male member of jury
- “Look at totality must say guilty” (emphasis added) – female member of jury making an apparent attempt to come to grips with treatment of piecemeal evidence
The handwritten notes from members of the jury were released by National Archives 30 years after the trial: see The Telegraph.
Mrs Chamberlain was found guilty in 1982 and sentenced to life in prison. Her husband was found guilty of being an accessory.
Mrs Chamberlain appealed her conviction all the way to the High Court (Chamberlain v The Queen (No 2) (1984) 153 CLR 521).
By the time she arrived at the High Court, some of the scientific evidence had been discredited. There were serious doubts about blood test results. It could not be proved that blood under the dashboard and in the car of the accused parents was foetal blood. There were serious doubts about the evidence of a pathologist in relation to the apparent imprint of a hand in blood on Azaria’s jumpsuit.
Mrs Chamberlain’s legal team understandably argued before the High Court that it was unsafe to rely on the jury verdict because a number of elements on which they might have formed an inference of guilt were unsound.
The High Court dismissed the appeal. Yes – if you are looking for injustice this appears an astonishing outcome. The Court decided that the jury’s finding of guilt should not be disturbed because of the existence of other legitimate bases for its decision.
Whilst this conclusion does not seem consistent with a ‘links in the chain’ approach, comments by High Court judges in the Chamberlain case were subsequently interpreted to mean that a jury must be satisfied of all the facts upon which the inferences are based in a circumstantial case.
Indeed, the Chamberlain case stood as authority that in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon individual items of evidence, each of which must have been proved beyond reasonable doubt.
Ultimately, and after her failed appeals, some hikers stumbled across the baby’s matinee jacket near a dingo lair close to the location of the baby’s disappearance. Police had said the jacket did not exist. Mrs Chamberlain was vindicated. She was released from prison, and Meryl Streep starred as Mrs Chamberlain in a movie about the now infamous case.
B. 1990: Moving on from ‘links in a chain’
In 1990, the High Court in Shepherd v R (1990) 170 CLR 573 decided that the Chamberlain case was based on a ‘misconception’. This is usually code for a court disagreeing with another decision but being too nice to say it out loud.
In Shepherd the Court divided the world of criminal cases into two. Sometimes, there might be cases where it is so important that intermediate facts must be proved that the ‘links in a chain’ metaphor will apply. In other words, if an intermediate fact cannot be proved the case must fail.
Other times (read: most other times), the totality of circumstances must be proved (‘strands in a cable’) having regard to the discharge of the overall standard of proof.
Dawson J (Mason CJ, Toohey and Gaudron JJ agreeing) explained both the ‘misconception’ and the correct position in these terms, at - 585:
“The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts – individual items of evidence – proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. … It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.
Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.” (emphasis added)
‘Strands in a cable’ also made an appearance:
“But where – to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par.2497, pp 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.” (Emphasis added) (Dawson J at -)
It followed that it was quite proper for a jury to draw the necessary inference from the whole of the evidence provided they reached their conclusion upon the criminal standard of proof. This was because the force of a mass of evidence may be cumulative: per Dawson J at ; McHugh J at . As McHugh J explained:
“… [t]he cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance”: at -
C. 2000s: ‘United force’ approach preferred
Over and over again, the courts since 2000 have referred to the importance of the “united force” of all the circumstances put together and warned against considering the evidence in “a hermetically sealed compartment”. ‘Links in a chain’ unless the facts specifically required it, appeared the exception rather than the rule.
Many of these quotes are sourced from Chamberlain. Also see Velevski v R  HCA 4; (2002) 187 ALR 233; R v Hillier  HCA 13; (2007) 228 CLR 618: “neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal” (per Gummow, Hayne and Crennan JJ; Gleeson CJ agreeing at ); and The Queen v Hillier  HCA 13, 228 CLR 618.
D. Trial judges make the call
Under criminal law, the relevance of ‘links in a chain’ or ‘strands in a cable’ strikes home when it is time for a trial judge to direct the jury.
The aim is to give ordinary members of the community co-opted into jury duty some tools to help them work through evidence in a circumstantial criminal case.
In giving what is called a Shepherd direction (with a nod to the High Court case), a judge makes the call as to whether to inform a jury to consider the evidence like ‘strands in a cable’ or whether to consider it like ‘links in a chain’.
A ‘links in a chain’ direction will be given if there are necessary or intermediate facts that must be proved in the chain of reasoning towards an inference of guilt.
For a trial judge to pick the correct analogy to direct a jury involves guesswork.
The verdict can be overturned because the trial judge has, according to an appeal court, failed to get the direction right. The judge might have referred to ‘strands in a cable’ when he or she should have given a ‘links in a chain’ direction.
For instance, the NSW Court of Appeal found a trial judge gave the wrong direction (‘strands in a cable’) because if one particular factual matter was removed from the list of facts needed for the Crown to prove its case, one was “left with an empty shell”. The direction should have been given that it was an indispensable intermediate fact that had to be proved beyond a reasonable doubt (‘links in a chain): R v Zaiter  NSWCCA 35 per Ipp JA at .
E. The concepts are confusing which is why ‘totality’ of evidence preferred
Confused? If so, you are not alone. Imagine you are a member of a jury in a criminal trial where someone’s liberty may rest on whether you understand how ‘links in a chain’ is meant to work.
Under the Jury Directions Act 2015 (Vic.), the need for ‘strands in a cable’ and ‘links in a chain’ jury directions have been abolished, and the approach simplified.
Judges have long recognized this problem. One of them, a certain former Chief Justice of the Supreme Court of New South Wales, the Honourable James Spigelman AC, QC (and a member of the CAS Panel in the Essendon case), stated in Davidson v R  NSWCCA 150 at  that where there are only two intermediate facts, it would not be “‘unnecessary’ nor ‘confusing’” to give a ‘links in a chain’ direction. However, in a case where “… there are numerous separate facts, of varying degrees of probative force, it could very well be confusing to do so.”
F. Application to Essendon case
Now that you are armed with the above background, consider the following:
- Under Australian law, ‘links in a chain’ and ‘strands in a cable’ are common metaphors used to direct juries in criminal circumstantial cases about how to evaluate the evidence.
- There is a distinction between the two types of cases:
- ‘links in a chain’ – the case is proved by sequential reasoning
- ‘strands in a cable’ – the case is proved by an accumulation of detail.
- The purpose of the two metaphors is to help direct juries.
- It is the job of the trial judge to decide if it is a ‘links in a chain’ or ‘strands in a cable’ case, and to direct the jury accordingly.
- It is easier to prove ‘strands in a cable’ than ‘links in a chain’.
- This is because if one link in a chain is missing, the prosecution’s case falls apart.
- However, a trial judge should direct ‘links in a chain’ (unless overturned by statute) if some intermediate facts are so indispensible that, without it, the inference cannot be drawn that a person is guilty.
- The Essendon case was not a criminal case.
- There was no jury.
- This was therefore not a case where the trial judge had to decide which metaphor applied, and to instruct a jury accordingly.
- The choice of analogy was therefore a forensic choice of the ‘prosecutor’ (ASADA / WADA) to help persuade decision makers that they had proved their circumstantial case to a point of comfortable satisfaction (which lies between balance of probabilities and beyond reasonable doubt under the AFL Code).
- ASADA picked ‘links in a chain’ to help persuade the AFL Tribunal: “ASADA, before the AFL Tribunal, relied exclusively on an analysis of links in a chain, which was accordingly reflected in the AFL Tribunal’s approach”: para 109 CAS Decision.
- In other words, ASADA volunteered to prove its case by applying the more difficult test.
- The AFL Tribunal, applying ‘links in a chain’ (as it had been asked to do by ASADA), declared it was not ‘comfortably satisfied’ of the first two facts below, meaning two indispensible links in the chain were missing such that it was unnecessary to consider the rest:
- TB4 was procured from sources in China; and
- TB4 was obtained by Mr Alavi, compounded and provided to Mr Dank in his capacity as Sports Scientist at Essendon; and
- TB4 was obtained by Mr Alavi, compounded and provided to Mr Dank in his capacity as Sports Scientist at Essendon; and
- Mr Dank administered TB4 to each Player.
- ASADA lost.
- WADA adhered to the ‘links in the chain’ analogy in the appendices to its appeal brief (para 109 CAS Decision). However, it had seen the light by the time of the hearing, switching in favour of a ‘strands in a cable’ analysis.
- The Panel liked this approach. This is not surprising because Australian court decisions prefer it, and James Spigelman, when Chief Justice of the New South Wales Court of Appeal, had remarked upon the risk of confusion if ‘links in a chain’ was applied to numerous separate facts.
- ‘Strands in a cable’ has had mainstream acceptance under Australian law since 1990 as a method of proving a circumstantial case.
- The Panel decided that WADA was able to reformulate its argument using this analogy: “it did no more than present the same arguments in a different way” (para 111 CAS Decision).
- Had ASADA chosen to use ‘strands in a cable’ to present its evidence to the AFL Tribunal, one can only guess whether the outcome might have been different.
- Caveat: It is unclear from the published material whether ASADA was encouraged by the AFL Tribunal to proceed with “links in a chain”, which might have impacted the forensic choice ASADA made.