To mark International Wrongful Conviction Day, Harold Levy *, publisher of The Charles Smith Blog in Toronto, invited Dr Bob Moles of Flinders University in Adelaide to provide his insights into the case of Derek Bromley, which, he says, features “the most disturbing feature” of any wrongful conviction in the Anglosphere. (Also see our post marking the day, October 2 – yesterday Australian time.)
Writes Levy: “By highlighting the Derek Bromley case this International Wrongful Conviction Day, I am adding my voice to others around the world who are expressing their concern about the case to the South Australian government in a bid to secure his release and exoneration after more than 38 years of wrongful imprisonment, for the reasons so clearly articulated by Dr. Moles.”
The disturbing Australian Case of Derek Bromley
[The details of this case, including summaries of the expert reports on the appeal are at the Networked Knowledge Derek Bromley Homepage. A commentary on the most recent appeal, the basis for this article, is the Bibi Sangha, Bob Moles research paper].
All countries have wrongful conviction cases which give disappointing insights into the failures of experts, police, prosecution, judicial and other legal officials. It is not uncommon for those involved in such cases to describe them as the ‘most shocking’ or ‘most awful’ cases to date. In the case of Derek Bromley, there is one aspect of the case which is so shocking that of all the wrongful conviction cases identified in recent years in the US (2,800) Canada (30) and the UK (480) – none of them contain the most disturbing feature which lies behind Derek’s case.
Derek, an aboriginal man, was part of the ‘stolen generation’ having been taken from his family by ‘the authorities’ as a young child and placed in foster homes. He had at times been in trouble with the police.
The body of Stephen Docoza, was found floating in the river in Adelaide in April 1984. Following police investigations Bromley was charged and convicted of his murder. He was given the mandatory life sentence with a non-parole period of 32 years – subsequently reduced to 22 years. When he completed that sentence, he was refused parole, because he maintained he had not committed the crime. He remains in prison today, having served over 38 years. By comparison, a man who had murdered a woman and her two young children was given a minimum sentence of 30 years; a person who murdered a young female police officer and injured 22 other people was given a minimum sentence of 28 years (research paper p10).
The problems with Derek’s conviction
These fall into two parts: the ‘eye witness’ – and the ‘forensic pathology’
The eye witness evidence at trial
The person who claimed to have seen Derek assault Docoza and drown him in the river was suffering from a schizo-affective disorder. This meant that he was schizophrenic and bi-polar – said to be an unusual combination of psychiatric disorders. On the night the incident occurred, he was known to be suffering from both visual and audible hallucinations, and various delusions. He thought he was the king of Adelaide, a top league footballer and an expert with nunchakus. He thought he had been in a fight with the devil!
The prosecutor told the jury that despite those obvious problems with the Crown witness, they could still regard him as potentially reliable when he described Bromley’s actions in assaulting and drowning the deceased.
On the appeal
There were five eminent psychiatric and psychological experts who all agreed that the description of the eye-witness at trial was not correct. They said the condition of the witness involved such profound cognitive deficits, that the jury should have been informed that his evidence concerning the experience should have been regarded as inherently unreliable. The experts also agreed he would be highly suggestible in police interrogations. Interestingly, the prosecution refused to call their own expert as required by their ‘duty of disclosure’. His report was on all fours with the defence experts. He had to be called on the appeal by the defence.
The forensic pathology evidence
At trial: the pathology evidence from the Chief Forensic Pathologist was that the injuries to Docoza had been inflicted at around the time of death and were consistent with the description of the assault from the eye-witness. Powerful corroborating evidence for the jury.
On the appeal: three eminent experts, including the Crown’s own expert, agreed that the evidence given at trial was not correct. When a body has been immersed in water for a number of days, the putrefaction which occurs makes the timing and identification of injuries extremely difficult. They agreed that the damage to the body could all have occurred post-mortem, as the body was sinking and then floating in the busy water-way. In fact, they were all agreed that because of the problems which arose with this autopsy, there was insufficient evidence to confirm that Docoza had in fact drowned. Because of the inadequate autopsy, they said the cause of death should be classified as ‘undetermined’.
The diagnosis of drowning
Where a body is found in water, one cannot assume that the death was caused by the immersion in water. It is possible that the person died and then fell into the water. It is also the case that there are no signs found at autopsy which are pathognomic (exclusively indicative) of drowning. All of the signs found in a drowning case could also be caused by deaths from heart attacks, strokes or drug-induced deaths, for example. The correct procedure is to undertake a complete autopsy to look for other possible causes of death. If after that, no other cause of death is available, one may then conclude that the immersion in water caused the death. Unfortunately, Dr Manock in this case (as in that of Mr Keogh) said that once he identified the death as a drowning death, he did not look for any other cause. The experts said this was a fundamental and basic error.
The pathologist in this case – the ‘exclusive’ problem
[Details of his background and links to the cases and materials referred to can be found in the Networked Knowledge Briefing Paper]
Now we come to the ‘exclusive’ and elusive problem with the Bromley case. The pathologist who conducted the autopsy (Dr Colin Manock) had been the chief forensic pathologist in South Australia for about 30 years – from 1968 to 1995. However, he did come with some baggage.
His Fellowship of the College of Pathology
In 1971, around the time he was about to give evidence in a leading murder trial (that of Frits Van Beelen) he was ‘given’ a certificate stating he was a Fellow of the College of Pathology. A representative of the College said that Manock was excused from undertaking the five years of studies and examinations ‘because of the seniority of the position that he held’. His subsequent reference to his status as a Fellow, as in the Bromley trial, without any further elucidation, could be seen to be a misrepresentation – giving the impression he had undertaken and passed the relevant examinations.
Dr Manock’s lack of qualifications
In the mid-1970s, whilst in a dispute with his employer, the head of the Forensic Science Centre told the Superior court in Adelaide (called the Supreme Court) that they had to change the conditions of Dr Manock’s employment because he was ‘not qualified to certify cause of death’ and that he had ‘no expert qualifications’ (recognising that his Fellowship was not an expert qualification). This meant that Dr Manock could not (or should not) complete an autopsy on his own, and could not (or should not) appear in court as an expert witness.
Inexplicably, the state continued to direct him to undertake some 10,000 autopsies over the next 20 years. They also used him to help secure convictions in more than 400 cases during that time – which unfortunately included the conviction of Derek Bromley. However, there were further problems which occurred prior to the Bromley trial.
The 1978 ‘public’ autopsy in Mintabie
In 1978 Dr Manock was called to the scene where an aboriginal man had been shot and killed in an outback town. Manock arranged for a makeshift table to be erected in the street – two oil drums and a sheet of corrugated iron. Then, in front of the local traders and passers-by, he proceeded to cut open the man’s body, and removed his internal organs which he threw into a bucket, whilst making jokes about it. Despite a police officer being present, and the fact that people in Adelaide soon got to hear about it, nothing was done about it.
The 1981 High Court Appeal
Dr Manock had helped to secure the conviction of Mrs Emily Perry for the attempted murder of her husband as the result of what he described as the ‘malicious administration of arsenic’. Eventually the Australian High Court (equivalent to the Canadian Supreme Court) determined that Dr Manock’s evidence was ‘not fit to be taken into consideration’. One of the judges said that the prosecutors in South Australia should use people who are ‘substantially’ and not just ‘nominally’ experts in their field. Again, nothing was done about it.
The duty of disclosure
At the time of the Bromley trial
It is clear that the Crown has a duty to disclose to the defence and to the court, all material which is relevant to the conduct of a fair trial, particularly that which goes to the credit or character of a prosecution witness (research paper p77). At the Bromley trial, the prosecutor failed to disclose that Dr Manock was not qualified to do autopsies and was not qualified to give expert evidence in court – or that the head of the Forensic Science Centre had previously stated that to be the case in the earlier court proceedings. He did not disclose that the Fellowship certificate was not in fact an expert qualification. He did not disclose what the High Court of Australia had previously said about him. In fact, the court was told that Dr Manock was highly qualified and that his evidence was reliable.
At the time of the Bromley appeal
By the time that Mr Bromley’s appeal took place a number of other events had occurred regarding the status of Dr Manock and his abilities (or lack of them).
The Baby Deaths Inquiry: at an inquiry into three baby deaths, the coroner stated that Dr Manock had fundamentally misdiagnosed the cause of death in each case. Manock had said the babies had died of bronchopneumonia. The coroner accepted that there was no evidence to support that conclusion. The babies had in fact been beaten to death – they had broken ribs, a severe spinal injury and skull fractures. The coroner accepted that Dr Manock had not been honest in answers to his questions on oath. The police Major Crime squad in Adelaide is now re-investigating these cases, some 25 years later.
The Henry Keogh appeal: Mr Keogh spent over 20 years in prison for a crime, which it turned out, had never occurred. Dr Manock had misinterpreted a slip-and-fall accident as a homicide by drowning in a domestic bath. The appeal court accepted that Manock’s evidence had been ‘false and misleading’. Two of the experts who were to give evidence on Mr Bromley’s appeal (for which leave to appeal was refused) had given very similar evidence on Mr Keogh’s appeal which led to the overturning of his conviction.
The media storm: In the 15 years prior to the Bromley appeal, there had been numerous national and state-based television and radio programs which had detailed Dr Manock’s failings in a whole series of cases (these are set out in the briefing paper). In one case he told the Coroner that a man had died at a time which was over 2 hours after his dead body had been found by the police. In another he had said that a man who had been shot in the head had died from an accident or natural causes. In another he had said that a beating with a threaded end of a metal pipe would cause injuries indistinguishable from those caused by the fabric of corduroy.
A new right of appeal
Over the years there had been many attempts to persuade the authorities to allow Mr Bromley a further appeal, but they had all been refused. Eventually, the parliament was persuaded to pass legislation to create a new right to a further appeal. (We have suggested a similar change should be adopted in Canada). The South Australian change was the first such change in relation to the appeal rights in any country for over 100 years. It was under this legislation that Mr Keogh managed to get his conviction overturned. It was anticipated that the result in Mr Bromley’s case would be similar. Both cases involved the same two defence experts who made very similar arguments about Dr Manock giving similarly incompetent and misleading evidence in relation to drowning cases.
On the Bromley appeal
Although the history of Dr Manock’s lack of qualifications and incompetence had not been raised on the Keogh appeal Mr Bromley and others had made a great point with his lawyers that they were to be a key issue on his appeal. To their great surprise, on the final afternoon of the Bromley appeal hearing, senior counsel for Mr Bromley withdrew all of the evidence which went to those issues about Dr Manock. Mr Bromley was given no prior warning that they were to do that, and he has received no explanation as to why it was done.
The duty of disclosure by the Crown
In the recent case of R v Keogh (No 2) 2015 Justice Blue emphasised that the duty of disclosure by the Crown is to the court, not to the defendant. He also emphasised that it is the duty of the court to ensure a fair trial – and of course this implies an effective appeal (see research paper p82). Putting those propositions together, irrespective of the willingness of defence counsel to raise those issues, the duty of the prosecutor and of the judges is to ensure that the court is not misled, and is acting upon a proper appreciation of all relevant issues. It therefore follows that if the prosecution and judges know that Dr Manock is not qualified to do autopsies or to give expert evidence in court, then it must follow that the failure to raise these issues at Mr Bromley’s trial when using Dr Manock as a key Crown witness must be relevant to his appeal and fatal to the upholding of his conviction.
the most disturbing feature
The Bromley appeal decision
The appeal court refused Mr Bromley leave to appeal. An application for leave only has to establish that the appellant has a case which is reasonably arguable. The five experts in relation to the eye-witness evidence (including the Crown’s own expert) were agreed that the evidence as presented to the jury on this issue was fundamentally flawed. The three experts on the forensic pathology evidence (including the Crown’s own expert) were agreed that the evidence as presented to the jury on this issue was also fundamentally flawed. The court said they accepted the content of the expert reports. However, they then said that the expert reports only applied in general terms and did not necessarily mean that the facts implicit in the evidence of the witnesses was incorrect. This was not a correct application of the appellate principles which refer to a ‘reasonable likelihood’ of the jury being misled as a sufficient basis for allowing an appeal.
As to Dr Manock’s background, the judges stated that although there was material in the affidavits critical of Dr Manock, defence counsel had (‘quite correctly’ they said) decided not to raise those broader issues and decided instead to concentrate ‘on what Dr Manock did and what evidence he gave and what opinions he formed’. The court expressed its agreement with that approach (research paper pp46-7). That was not a correct procedure which, we say, would require the admissibility of an expert’s evidence to be dealt with before the specific content of his opinions.
The appeal court then took another unprecedented step. They allowed the prosecutor to present evidence of a prior conviction of Mr Bromley. The prosecutor was prepared to call the witnesses who had given evidence at that trial over 44 years previously. However, senior counsel for Bromley generously conceded that he would allow the court to use the transcript of the evidence they had given at that trial all those years ago, thereby foregoing any opportunity for cross-examination of those witnesses. The Crown then argued that if Mr Bromley had committed that prior offence (a sexual assault), it would not be ‘in the interests of justice’ to allow him to appeal his conviction for the subsequent murder.
The Australian High Court has stated on many occasions that a conviction cannot be upheld on the basis of evidence which had not been led before the jury. It has also said that it is not the function of an appeal court to ‘usurp the function of the jury’ by determining factual issues which are the exclusive remit of the jury (research report p27).
We are not aware of any previous case where an appeal court heard evidence on an appeal, which was not presented at trial, relating to circumstances which have nothing to do with the case being appealed, in order to refuse leave to appeal a conviction which has otherwise manifestly failed.
If this approach to criminal appeals is allowed to remain undisturbed, it would require us to substantially revise the textbooks on criminal appeals. Retrials would become unnecessary.
The Attorney-General in South Australia
One month after Mr Bromley had been refused leave to appeal, the AG in South Australia in a radio interview, said of Dr Manock’s role in relation to the overturning of Mr Keogh’s conviction (after 20 years of wrongful imprisonment):
“Dr Manock’s evidence as an expert was relied upon. It was completely unreliable, in fact manifestly so, for the purposes of making it simply unsustainable to have a conviction be maintained. Clearly, this was a person who for whatever reason had been appointed, you know, decades before who was discredited and dismissed and his evidence wholly, you know, rejected in that way. The real question then is, well look, how many other cases in which he’s given an expert opinion as to a cause of death or circumstances surrounding it, that might come to the surface? Well, in short, we don’t know the answer to that.” (ABC radio 2 July 2018)
We did ask the AG to conduct an inquiry into these cases (10,000 wrongful autopsies and 400+ wrongful convictions), including that of Mr Bromley, but she replied that people could sort the problems out themselves ‘as they arise’ (the correspondence is here). We did point out in Australia’s national newspaper that there were no procedures by which ‘the arising’ could take place. Still, nothing further was done.
We await a further appeal
Thankfully, the Bromley case is being prepared for a further appeal to the Australian High Court. There is every expectation that the court will do what is necessary to correct what we perceive to be an egregious error by the appeal court in Mr Bromley’s case. It will also provide the prosecution with the opportunity to fulfil their duty of disclosure to the court, and to provide the court with the true facts concerning Dr Manock’s background and status.
If that were to be done, then it would presumably require the Crown to concede that the appeal should be allowed. In that event, they could avoid troubling the Australian High Court, and with the agreement of Mr Bromley’s legal team, they could make a joint application to the intermediate appeal court for a further appeal. The new legislation allows for a ‘second or further appeal’.
In the Australian case of Farah Jama, the prosecutor realised that an appealable error had occurred and applied to the appeal court for an urgent hearing of the appeal. The Court sat the next working day. The judgment consisted of a single sentence:
“The Court, having read the materials filed by the parties and having considered the submissions and concessions of the Crown, is satisfied that it is appropriate to order that the conviction relating to the applicant be set aside and a verdict of acquittal be entered.”
We see no reason why the same approach cannot be adopted for Mr Bromley.
* Harold Levy is a lawyer and former Toronto Star journalist. His previous work led to the Goudge Judicial Inquiry into the work of Dr Charles Smith, a notoriously incompetent paediatric pathologist, in whose dishonour he named his blog, which examines flawed pathologists and pathology, flawed science, etc.