South Australia’s appeal court flouts the law

Derek Bromley was convicted of murder in 1984, wrongfully, in the opinion of several legal experts; now, his latest appeal (June 2018) flounders when South Australia’s appeal court “fundamentally failed to pay due regard to the rule of law and to the well-established principles governing criminal appeals,” according to legal academics Dr Bob Moles and Bibi Sangha. “The principles espoused in the Bromley decision are not only contrary to established authority but have never before appeared in any legal judgment in Australia, Britain or Canada.”

Moles and Sangha have issued the following briefing note on this latest legal catastrophe in Adelaide, which amounts to a second wrongful conviction of Derek Bromley, already in prison for 35 years.

Derek Bromley was convicted of murder in 1984. It was said that he assaulted a person and drowned him in the river in Adelaide. He is in his 35th year of incarceration. Similar cases have warranted sentences of around 8-10 years.

Bromley had brought a further appeal under the new right of appeal.

The Court of Criminal Appeal was provided with five expert reports as to the psychological state of the ‘eye-witness’ at the time of the incident. Although known to be psychotic and suffering from hallucinations and delusions on the night of the incident, the Crown told the jury that this did not necessarily make the evidence of his observations implicating Bromley unreliable.

diagnosis of death by drowning was wrong

All five experts on the appeal said that this was now known to be incorrect. Current knowledge about schizo-affective disorders has advanced significantly since 1984 (thus satisfying the ‘fresh’ test). The Crown’s expert emphasised that it was now known that the cognitive disorder was more fundamental than had been represented at the time of the trial. Because of that, it was his view that nothing the witness had said about his ‘observations’ could have probative value. He added that the judge’s instructions to the jury were inadequate to inform them of the witnesses’ true condition. The prosecution refused to call their own expert on the appeal so he had to be called by the defence.

The appeal court was also provided with three expert reports on the forensic pathology evidence given by Dr Manock. All the experts agreed that the diagnosis of death by drowning was wrong (as it was in the Keogh case). They also agreed that because Dr Manock’s autopsy had been fundamentally inadequate, the cause of death must be classified as ‘undetermined’. They also agreed that the cause and timing of the injuries which Dr Manock said were consistent with an assault at about the time of death was also wrong.

The experts said that the putrefaction which had developed during the five days in the river made it impossible to determine the timing or the cause of the injuries with the precision which Dr Manock said he had identified. The experts said many of the injuries could well have been caused in the post-mortem period while the body was in the river.

The appeal court determined that the ‘interests of justice’ requirement in the new right of appeal meant that the court had to ensure the acquittal of the innocent and the conviction of the guilty. This meant that it should allow the DPP to present additional evidence to the court on the appeal which would be ‘extremely probative of the appellant’s guilt’. Evidence of a prior conviction was then admitted in order to establish that Bromley had a ‘propensity’ to commit the type of crime in the instant case – even though accident, natural causes and suicide, according to the experts, could not be excluded.

The new evidence, the court said, rendered the Crown and the appellant’s expert evidence on the appeal less ‘compelling’ and therefore insufficient for the grant of leave to appeal.

The Court of Appeal also said it was ‘quite correct’ for defence counsel not to raise issues ‘critical of Dr Manock in a broader sense’.

The issues included the following facts:

The state had given sworn evidence in legal proceedings prior to 1978 to say that Dr Manock was not qualified to certify cause of death, and he had no expert qualifications;

Dr Manock had conducted an ‘autopsy’ of an aboriginal man in the high street in front of members of the public whilst making jokes about it;

The Coroner had issued a report in 1995 stating that Dr Manock in his autopsy reports on baby deaths had claimed to have seen things which could not have been seen (because they didn’t exist), his autopsy reports achieved the opposite of their intended purpose, that he was incompetent and had given answers on oath before the Coroner which were ‘spurious’ (not honest);

The Court of Criminal Appeal in South Australia had said, in overturning Mr Keogh’s conviction, that Dr Manock’s evidence at trial had been ‘false’, ‘misleading’ and his determination of the cause of death had no scientific basis to it.

appeal court failed to pay due regard to the rule of law

It is important to observe that two of the experts on the Keogh appeal (Dr Lynch for the Crown and Professor Thomas for the defence) gave very similar reports in both the Keogh and Bromley cases. Both involved the misdiagnosis of drowning and associated injuries by Dr Manock. In Keogh their reports were not only sufficient grounds for the grant of leave to appeal, but also for the appeal to be allowed. In Mr Bromley’s case, very similar reports were determined to be insufficient for the grant of leave to appeal.

It is our view that the appeal court in Bromley has fundamentally failed to pay due regard to the rule of law and to the well-established principles governing criminal appeals. The appellate function is to review the conduct of the trial to determine if appealable error has occurred. If it has, the proper procedure is to set aside the conviction, and in appropriate cases, allow for a retrial. Not to conduct that retrial before the appeal court.

appeal court cannot usurp the function of the jury

It is not part of the appellate function to allow the Crown to present additional evidence on an appeal with a view to persuading the appeal court to dismiss serious errors at trial. If the Crown wishes to persuade a court of the guilt of an accused person, it had to be done in front of a jury, with the facts to be determined by the jury. In this case the appeal court has, in effect, abolished the right to a jury trial, and at the same time abolished the right of a wrongfully convicted person to an effective appeal and to a retrial.

There is well established authority to support the view that the appeal court cannot usurp the function of the jury. It is not permissible for an appeal court to uphold a guilty verdict on the basis of evidence which has not been put to a jury. Especially is this so where the additional evidence was in the possession of the prosecution at the time of the trial but not then used by them. If the evidence was in fact ‘extremely probative of the appellant’s guilt’, then why was it not presented by the Crown at the time of the trial?

Our recent book – Bibi Sangha and Robert Moles, Miscarriages of Justice: Criminal Appeals and the Rule of Law in Australia (2015) LexisNexis, 511pp is published as a guide to practitioners on the pre-existing appellate procedures and the new right of appeal. We are quite confident in stating that the principles espoused in the Bromley decision are not only contrary to established authority but have never before appeared in any legal judgment in Australia, Britain or Canada. We think they are an important issue of public concern and should be brought to the attention of lawyers and members of the public interested in this area of the law.


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16 Responses to South Australia’s appeal court flouts the law

  1. WHALENSKY says:

    When you present that piece of classic police talk to your superiors– you ought to be and will be taken note of for future use as a jury foreman — character assassination of the accused a speciality .

  2. Jane Austin says:

    Derek’s prior conviction of attempted rape could most definitely affect the eventual conclusion of his High Court appeal. For his past history taints his prospects to prove he is of good character. Even if he now could maybe have changed. The fact that he refuses to admit he did anything wrong makes him look amoral, it makes him look like he cannot change. He admits he committed a crime in the attempted rape trial of 1981. Though does not admit to assisting the other accused in the process. The young victim aged 15 at the time says that Derek bashed him while assisting John Karpany to try and pull his pants down during the forcing of oral sex, which both Derek and he demanded him of. Though it’s been a long time and his past behaviors have such a propensity that it makes it awkward for him to insist on having a fair trial. He admits he was a so called ‘ Hock’ in prison, in the program ‘ Barred Wives’ Joe Smith mentions. A term used by an institutionalized person whom has sex with men in prison as the dominant . He is determined to prove he is innocent of the murder conviction and because of this his parole board refused to release him. Why this is so is a question to ask the parole board. Only he knows the real truth. Yet this depends on how he perceives truth himself.

  3. Garry Stannus says:

    Thank you for this link, Jane Austin:

    Though Robyn Milera was ‘strictly speaking’ correct in writing “There was no charge or conviction of rape. No rape occurred” ….

    …. yet Bromley was indeed convicted of attempted rape. Joe Smith’s comment is not written in as careful a manner as Robyn’s, yet in my view, Robyn’s reply – carefully written as it was – does not properly dismiss Joe’s comment.

    Elsewhere in the linked Appeal Court’s decision, the following note is made:

    “Bromley also had a much more significant prior criminal history than Karpany across three different States or Territories, including one count of rape, three counts of robbery with violence, five counts of assault (some of which occasioned actual or grievous bodily harm), three counts of assaulting a prison officer and one count of arson.”

    This mention – I take it – of ‘one count of rape’, is distinct from the ‘attempted rape’ conviction.

  4. Joe Smith says:

    Bromley and Karpany were both charged and convicted of the rape and sexual assult of a 14 year old boy in an allyway before this murder.
    The witnesses in that case we’re of sound mind and the victim was covered in Bromleys sperm.
    Bromley and Karpany are both homosexuals who have lengthy criminal records for raping young boys both in and out of prison, Bromley admits this in a documentury called, Bared Wives, by Piper Productions. Is Bromley guilty..Ive known him since 1983 when he was serving time for raping a 14 year old..that makes him a Child Molesterer..and Karpany.
    Bromley is so sick and perverted he married the mother of a young boy he was raping in Yatala Labour Prison called Tony Verrel who after the marriage changed his name to Tony Bromley. While Henry Keogh was an Innocent man, Bromley is guilty and would offend again if released.

    • Robyn Milera says:

      ‘Joe’ you need to be corrected.

      1. As to the previous conviction you refer to, I am familiar with the charges, the trial transcript and judgment; and the sentencing remarks etc. There was no charge or conviction of rape. No rape occurred.

      2.As to the forensic evidence you claim connected Derek Bromley to the ‘rape’, it did not exist either in theory or fact and it is libellous of you to say that it did. Clearly a sensational embellishment out of absolutely no where.

      3.Derek Bromley does not have ‘lengthy criminal record for raping boys’ either in or outside of prison. There has never been a charge against him for rape or child molestation.

      4.As for your representation that Derek Bromley made an admission of raping boys on the 1994 Documentary, a viewing of the video makes it clear that no such admission was reported on that program.

      5. As for Tony, he is deceased and cannot speak for himself. It would be inappropriate and offensive to raise that accusation with Pamela, Derek’s wife at the time.

      I am very glad that you have made these comments in this forum and for the wisdom of the editor to include your comments. I am grateful to have such a typical example of the disturbing human propensity to adopt rumour as a weapon, and in prison it is the most handy and powerful weapon. No man can truly defend himself when it is used on him and there is nothing like it for the the devastation, cowardly devastation it causes.

      Perhaps you truly believe all that you have stated as truth, but with each assertion you are still spreading a rumour and still believing a lie – 36 years after it began.

  5. MM says:

    Apologies for all the f-bombs but THAT is exactly how appalled and totally gob-smacked I am >:|

  6. Geoff says:

    Yes, it is easy for people like Mr. Johnston to comment when he is not the one facing jail time…or the electric chair. How quickly their tune would change…

    I followed the Keogh case closely & there was sufficient doubt that he should NEVER have been convicted. It seems to me he got convicted because he was a womaniser, not a killer.

    It seems similar to the Kevin Cooper case; KC has been on death row for over 30 years, but probably would not be there if he wasn’t black….

    • andrew says:

      Considering the evidence against Henry Keogh was the forensic autopsy report and that was totally discredited as wrong, Keogh should not have been charged, never mind convicted.

  7. SH says:

    Let 10 or more reasonable people just read this for its duration. Let them sit and think on it, and let them read it again…
    Then, let them see the questions on a whiteboard:-
    1) Can the eye witnesses testimony be counted as valid? Truthful? OR…- write in your own words.
    2) Can the autopsy reports be counted as valid? Truthful? Can they be trusted? OR…- write in your own words.
    3) Regardless of anything – why is this person still in jail/gaol?
    4) Would you be happy with this turn of events if it happened to you or a friend or a family member?
    5) Would you feel justice had been served?
    6) Do you trust ‘the system’?
    7) What do you think could be a way forward now? – write in your own words.
    Use this in a lecture for law students and those studying ethics as well.
    It would be very interesting to read the answers

  8. Brian Johnston says:

    Dr Manock screwing up does not make Keogh innocent.
    Bob Moles does not know what happened.
    Moles is playing with a technicality.

    Derek Bromley may be innocent I have not studied the case. I will

    • Robyn Milera says:

      With respect Brian, if you feel after studying the Keogh case, including the findings of the Court of Criminal Appeal which quashed the conviction, that Bob Moles is merely ‘playing’ with a technicality, perhaps you could spend a little more time on the study of that case Brian. In fairness perhaps you could explain the ‘technicality’ you are referring too exactly.

      It’s not the function of a bystander to study any case and decide on the guilt or innocence of any person. If that is your belief then I sincerely hope that neither you, nor anyone you love is judged and incarcerated without the benefit of a truly fair trial, and frankly, even then the truth may never come into it. A properly functioning criminal process in which all entrenched safeguards against the risk of injustices occurring is all we have to deal with. Let that go to seed and God help us all.

      If you intend to look into the Derek Bromley case you will not be sufficiently informed until you have obtained and read all of the expert reports and transcript of the trial and appeal. That would be a good start anyway.

      I’m glad that you are taking an interest.

    • MM says:

      I would call being both unfit and unqualified a bit more than a screw up! It’s totally inconceivable that the prosecution could put forward and incompetent f***ing buffoon and claim he is an expert on anything other than sadomasochism!! Because that’s about the sum of his exprience FFS!

  9. Lynn Giddings says:

    I am appalled. Thankfully, we do not have capital punishment in Australia these days. May it ever remain so.

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