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.