The Sydney Morning Herald from Sydney, New South Wales, Australia • Page 14

Page 12 The Sydney Morning Herald, Wednesday, February 9, 1983 Jury was misdirected, says McHugh Azaria judge erred: QC Wife tells of night of killing The wife of the Sydney bookmaker Lloyd Tidmarsh broke down several times yesterday as she told a Supreme Court about the night her husband was killed. Mrs Irene Hazel Tidmarsh was the first witness to give evidence in the trial of Edward James Smith, 40, who is charged with murdering Mr Tidmarsh and, while armed, assaulting Mr Tidmarsh and stealing his wallet, personal papers and money at Kogarah on June 13, 1977. Smith, who is appearing for himself, also is charged with stealing a car, the property of Muirs Motors at Habcrficld. on the same date. He has pleaded not guilty to all charges.

Mrs Tidmarsh said that she, her daughter Michelle, then 17, and her son Michael, then 16, had been in bed on June 13, 1977, when she heard, at about 1 1 pm, a loud noise coming from the direction of the back room and her husband's and other male voices. "Almost immediately a man appeared in my room. He said 'don't move, don't turn on the and nobody will get hurt'," she said. The trial continues tomorrow. Justice Muirhead had failed to put the defence case adequately to the jury in his summing up at the trial of Lindy and Michael Chamberlain, it was alleged in the Federal Court yesterday.

Mr Michael McHugh, QC. for the Chamberlains, also said the judge had misdirected the jury on the proper standard of proof required if the charges against them over the death of their daughter Azaria were to succeed. Mr McHugh was making submissions to a Full Bench of the Federal Court in support of three grounds of appeal lodged by the Chamberlains. Earlier the Chief Judge of the court. Sir Nigel Bowen, had said he and the other judges on the Bench, Sir William Forstcr and Justice Jenkinson, would reserve their decision on another five grounds of appeal which had already been argued.

The decision would be given as soon as practicable. Mr McHugh then began submissions on appeal grounds which alleged that Justice Muirhead had erred in law: When he directed the jury on the appropriate standard of proof as to what constituted a reasonable doubt. By equating the notion of "reasonable doubt" with that of "reasonable possibility." In not putting the sworn evidence of the Chamberlains to the jury. Mrs Chamberlain was sentenced to life imprisonment in the Northern Territory Supreme Court on October 29 last for the murder of her nine-week-old daughter Azaria at Aycrs Rock on August 17, 1980. Pastor Chamberlain was released on a $500 good behaviour bond for three years after being given a suspended 18-month jail sentence as an accessory after the fact, Mrs Chamberlain was released on bail on November 19 pending the outcome of her appeal.

Two days earlier she had given birth in Darwin hospital to a daughter, Kahlia. The Chamberlains are living in a cottage in the grounds of the Seventh Day Adventist College at Cooranbong, near Newcastle. They have not attended the appeal hearing. Mr McHugh told the court yesterday that Justice Muirhead had misdirected the jury by not including in his summing up a description of what the Chamberlains had said in evidence. Both the Chamberlains hod given sworn evidence, he said, and had denied any involvement in the death of Azaria.

Mrs Chamberlain's evidence had occupied 160 pages of the transcript and Mr Chamberlain's 148 pages. "The law is clear that an accused person is entitled to have his case clearly and adequately put to the jury in a separate way," he said. Justice Muirhead had not done so, Mr McHugh said. His only references to their evidence had been indirect. Mr McHugh said Justice Muirhead had erred in law in directing the jury as to the appropriate standard of proof and as to what constituted a reasonable doubt.

One reading of the judge's comments to the jury was that "beyond reasonable doubt" was the next level beyond "probably guilty," Mr McHugh said. "In our submission it is plain that the trial judge is really equating reasonable doubt with reasonable possibility. And in our submission this is a misdirection." The High Court had said on numerous occasions that anything that weakened the traditional formula ought to be rejected. "In our submission there is a breach of a fundamental rule that the accused are entitled to the benefit of any doubt which the jury believes is permissible and it is a misdirection to talk about reasonable possibility," Mr McHugh said. Mr McHugh said Justice Muirhead had dealt at very great length with the forensic evidence.

Justice Jenkinson asked if there had been evidence which, if accepted, would explain the presence of blood in the Chamberlains' car. Justice Jenkinson said: "Putting aside the evidence that it was foetal blood, if it was grown-ups' blood did they give evidence which would explain how it got there?" Mr McHugh said there was evidence of a nose bleed by the Chamberlains' son Regan, that Azaria had vomited in the car on five occasions, and that the vomit could contain blood. There was evidence of a group of boys being treated by the Chamberlains for bleeding. Both the Chamberlains were qualified in first aid. In reply to another question by Justice Jenkinson, Mr McHugh said Mr Ian Barker, QC, for the Crown, had spent a great deal of his final address to the jury saying they could convict Mrs Chamberlain before they even got to the issue of the blood.

The trial judge had not put to the jury the independent explanations of the Chamberlains about the use of a pair of scissors, the cutting of Azaria's jump suit and other matters. The hearing resumes today. DEPUTY GROUP GENERAL MANAGER SENIOR EXECUTIVE APPOINTMENT The Petroleum Corporation of New Zealand Limited, the holding company (or the Petrocorp Group ot Companies invites applications for this new executive position in the Group's Head Office in Wellington. Now in its 5th year of operations, the Petrocorp Group has assets in excess of SI billion and is continuing to expand its activities which include: Exploration for oil and gas. The development of New Zealand oil and gas resources.

The ever-widening distribution of natural gas. The production and national distribution of liquified petroleum gas (IPG). The development of petrochemical industries, currently ammonia-urea and chemical methanol plants. The successful applicant will be directly responsible to the Group General Manager for executive control of Group activities and will need to have the experience and job skills suitable for a top management position in this profit orientated industry. The remuneration package will reflect the importance of this executive position within the Petrocorp Group.

Additional background information can be obtained from the Group General Manager at Petrocorp House, Wellington. PO Box 5082 or telephone 729-092. All applications will be treated in the strictest confidence, and should be forwarded to: Mr F. W. Orr Chairman of Directors Petroleum Corporation of NZ Ltd PO Box 1568 AUCKLAND.

Inquiry into school buses An inquiry into school bus services was ordered yesterday by State Cabinet. The inquiry will examine the costs and efficiency of bus lines which take children to and from schools around NSW. Jts report is due by the end of April. No inquest on plane death Philip Wozniak. 26, of Elanora Heights, killed in a light aircraft crash at Bankstown Airport last year, had taken his oun life, his brother, Mr Richard Wozniak, told Mr G.

Class, SM, in Wcstmead Coroner's Court yesterday. After a brief hearing, Mr Glass dispensed with the inquest. Boy on bushfire charge Police charged a 14-year-old Thornleigh boy yesterday with setting fire to public property after a bushfire on Water Hoard property at Westleigh. The boy was allowed bail to appear at Hornsby Children's Court on February 17. Three for trial The convicted Woolworths bomber Gregory Norman McHardie, and two other prisoners were yesterday committed for trial to the current sittings of the District Court in Sydney.

McHardie, 30, Wayns Gary Le-Petit. 22, and Ian John Peter Steele, 23, were charged with attempting to escape from the Metropolitan Reception Centre, Malabar, on November 28, 1982. Westpac summonsed The Westpac Banking Corporation was charged by summons yesterday with supplying services to holiday-makers materially different from services in respect of which payment was received. In the Federal Court the Trade Practices Commission alleged that in late 1981 two couples and a woman booked tours on a Discovery Holiday 526 to Singapore. One day was said to be subsequently chopped off the tours.

Justice Sheppard adjourned the hearing to February 25. Murder trial aborted The trial of Garry Andrew Wait, 22, a waiter, of Canberra, who had pleaded not guilty to murdering William Devlin Arthur, 62, a former politician, has been aborted. The presiding judge, Justice Maxwell, was involved in a car accident at the weekend. A new trial is expected to be called later this week. $32,500 damages for painting done out of school By MARGARET RICE Mr Kool sued Mr Stanley-Hill for breach of warranty and for damages, claiming that he had received a warranty from Mr Stanley-Hill stating the painting was "School of Rembrandt, circa 1630" which should, he claimed, be interpreted as meaning it was done in Rembrandt's studio around 1630.

Counsel for Mr Stanley-Hill, Mr John Hamilton, QC, argued that the warranty meant the painting was done in the tradition of Rembrandt in his style of 1630. Mr Kool told the court that he was not an art collector "in any way, shape or form" and that the only other paintings hanging in his meaning of the terms to the ordinary person. Justice Foster accepted the expert opinion of Professor Peter F. Tomory, an art academic at La Trobe University, who said that The Baptism, of the Eunuch was an "imitation of a copy of an original Rembrandt, done by a botcher." It was suggested by a witness called for Mr Stanley-Hill, Mr Eric Rowleson, former director of the National Gallery of. Victoria and now assistant director of its special projects, that the term "school of" could apply to an 18th-century painting "if the influence of the master still directly controlled the brush of the imitator and is not house were done by his "two very artistic daughters." He said that Mr Stanley-Hill sold the painting to him for $23,000 in 1978 after explaining that it had a "certain mystique" about it and suggesting a similar work sold as a copy had been found to be an original Rembrandt, only two years before.

Justice Foster, giving judgment yesterday, said there was no question of misrepresentation or fraud. As well, considering the way the terms "school of" and "circa" are used in the art. trade, he had to consider the natural and ordinary broken by the dominance of another movement." But Justice Foster said he found that Mr Kool had a case and awarded $32,300 damages, including consideration of the amount Mr Kool was out of pocket for the comparatively valueless painting, plus interest. Mr Stanley-Hill was ordered to pay Mr Kool't court costs. Justice Foster also ordered the painting to be returned to Mr Kool.

Mr Kool, who was not in court yesterday, was unavailable for comment later. Mr Stanley-Hill, who was not present either, could not be contacted. A judge of the Supreme Court yesterday awarded $32,500 damages to a man who bought a painting, believing it was done in the studio of Rembrandt about 1630. Mr Cornells Kool, company director of Mosman, bought a painting. The Baptism of the Eunuch, in October 1978, from an art dealer, Mr Colin Stanley-Hill.

He said in evidence that he later took the painting to England where Jie had it assessed, and was told Bail for man charged over bombing that it was worth at most 52,000. AUDI 5 5 Now available with a lease offer almost as exciting as the car. FOR SALE AUTOMATED ORDER PICKING SYSTEM TO SUIT ANY DISTRIBUTOR, MANUFACTURER OR WHOLESALER OF CARTONED ITEMS, TO BE SOLD AS A WHOLE OR IN PARTS. SYSTEM COMPRISES: 2 only Control Systems PDP1103 Digital Computers with: LA1 20 Printers VHOOVDU'S M200 Card Readers RL01 ft RLV11-AD Disk Drives Real lime Clock 2 only Opto Isolator Interface Bays 1 only Motor Control Console for automatic and manual control, complete with liquid resistor banks. 116 Module: 7.6 meter long gravity feed friction controlled tones.

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22-24 Junction Street, FOREST 10 DOE. NSW. 2037 Alloy wheels optional extro. DEVELOPMENT PROPOSAL Environmental Planning and Assessment Act, 1979 Assessment of Environmental Impact Public Exhibition Lot 1 D.P. 81 8687, Cornwallis Road, Freemans Reach Council has prepaired a Dratt Local Environmental Plan which aims to permit ti use of the above Land for the purpose of a Sand and Crawl Processing Plant.

In company with Dralt Local Environmental Plan. Bridge Sands Pty. Ltd. have submitted a DevelODinent Application for: 1 The extraction of sand and gravel from an'tSOO metre length of the River at Freemans Reach; 2 The processing ol extracted material on the site the subject of the Draft Local Environmental Plan. The Environmental Impact Statement submittod by the applicant is on display at the following offices during their respective hours up until 4 00 p.m.

on Fnddv, 11th March, 1983: Hawkesbury Shire Council. George Street. Windsor. Windsor Library, Dight Street, Windsor. Richmond Library, West Market Street, Richmond.

NSW Environment Centre. 399 Pitt Street. Sydney. The Department ot Environment and Planning, Liverpool Street. Sydney The NSW Government Information Centre.

b5 Hunter St. Sydney. Bridge Sands Pty. Ltd. 4-10 Fisher Street.

Siiverwater. Written submissions addressed to the Shire Cterk and quoting DA34121 will be received up until 4 00 pm. on Friday. 11th March. 1983 Where these submissions are by way ol objection, the grounds thereof must be specified.

Any person who makes a submission bv way of an object-on and who ts dissatisfied with the determination of the consent authority, may appeal to the Land and fciwiumment Court in accordance with Section 98 ol the Environmental Planning and Assessment Act, 197U. A 32-year-old justice of the peace arranged tor the purchase of a car which nine days later exploded in the Hakoali Club car park at Bondi, police told Waverley Court yesterday. Mohamid Ali Bay-doun, a postal sorter, of Chapel Street, Rockdale, is charged with maliciously setting an explosive at the club on December 23 to endanger life. His counsel denied he was involved in the bombing. Sergeant Nicol, prosecuting, said Baydoun had arranged to buy a Valiant car at Burwood on December 14.

"The car was picked up from the yard on December 22," he said. It had been driven to the club the next day and left there. An explosion had followed in which other cars were damaged. Mr Jerry Forbes, SM, set bail of $100,000. He also ordered that four people deposit securities totalling $100,000 with the court.

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