Andrew L. Urban.
On the eve of his 40th year of imprisonment, Derek Bromley “finds himself, figuratively speaking, on the steps of the High Court of Australia for the second time,” writes his long-time friend and supporter ROBYN MILERA on Bringing Justice, as this extraordinary case remains in legal limbo, in controversial circumstances that will now be examined by the highest court in the land.
The SA Director of Public Prosecutions should be directed to inform the High Court that the evidence of Dr Colin Manock, former chief pathologist in South Australia, was inadmissible as he was not qualified to do autopsies or to give expert evidence in court, according to Flinders University legal academic Dr Bob Moles. Derek Bromley was convicted of murder based on Manock’s evidence.
“I can now confirm that all documents required for the application and an appeal have been filed,” writes Milera, in an update that follows the High Court’s unusual move last year in referring Bromley’s seeking leave to appeal to the full bench.
“No one is predicting where the case will be placed in the 2023 calendar but we hope it won’t be too long before we’re notified of the hearing details,” writes Milera. “Derek will enter his 40th year of imprisonment in April of this year. Conceivably, reaching this milestone will co-occur with the hearing of his application and hopefully a successful appeal.
“He has never allowed himself to be daunted by poor odds, or the disadvantaged position he occupies as a prisoner and a black one to boot. Neither has he ever considered making false confessions in order to improve prospects of release on parole. All efforts to have his conviction over turned ran into the fact that realistically there was no truly accessible pathway to justice for him in those early years of striving, however, those years netted support and placed him in the box seat for a breakthrough.
“In 2013, there was finally a legislative change. The South Australian Parliament created a new right of appeal against conviction on the basis of fresh and compelling evidence following a protracted campaign for measures to address incidents of miscarriages of justice. Although the measures provided in the resulting amendments fell short of forming an independent body of review of criminal convictions, there was at least a new avenue back to the Supreme Court. Because Derek hadn’t given up, he still had the attention of advocates and was granted funding from the Federal Attorney-General’s Department for the Aboriginal Legal Rights to prepare Derek’s second appeal to the Supreme Court. He was by then 29 years into his sentence.
“Fast forward ten years to the present day and he finds himself, figuratively speaking, on the steps of the High Court of Australia for the second time. It is there that the Supreme Court’s rejection of his 2018 application will be assessed. He knows he is innocent, he also knows an appeal is not about establishing actual innocence or guilt, but about adjudication of arguments on the relevant legal issues. He has been studying those arguments, reading them day and night, talking them through, trying to put himself in the mind of the Director of Public Prosecutions who is vehemently opposing him. He’s been trying to grasp in his own mind his prospects of coming home on the authority of a favourable judgment from our highest court of appeal.”
It has been said that private markets, for all of their weaknesses, have the incentive and capacity to self-correct: when their design is poor, the flaws trigger changes in market structure and conduct that usually ameliorate the problems.
Not so with the legal system. For instance, is the Director of Public Prosecutions vehemently opposing Bromley’s application to be heard by the High Court really about justice – or is it really about protecting the conviction irrespective of merit?
As we see with this and other cases we report, the legal systems around Australia remain firmly attached to their weaknesses, avoiding at all costs any reforms that might improve their efficiency in delivering justice – or correcting injustice when it seems so obviously needed.