High Court split decision against Bromley appeal

Andrew L. Urban.

In a cruel blow that is bound to raise legal eyebrows, Derek Bromley’s appeal against his conviction for the 1984 murder of Stephen Docoza has failed in a 3:2 decision by the High Court yesterday, rejecting submissions for Bromley that the Court of Criminal Appeal had erred by the way it had assessed inaccuracies in the evidence of the key witness in the case, Gary Carter. 

The dissenting judges noted that Carter suffered from either schizophrenia or schizoaffective disorder at the time of the killing.

In a minority judgment justices James Edelman and Simon Steward found a potentially substantial miscarriage of justice, highlighting the mental health challenges faced by Carter, who was in the city when a bruising altercation erupted with the 21-year-old victim that included a bashing with a gym dumb bell.

“More fundamentally, there were numerous aspects of Mr Carter’s account of the assault at trial that were either extremely unlikely or inconsistent with established facts,” they said.

The dissenting judges highlighted how Carter claimed to have seen the devil.

“As mentioned, and most significantly for the unreliability of Mr Carter’s account of the assault, Mr Carter was a man who, on 4 April 1984, was suffering from schizoaffective disorder and was acutely psychotic and hypomanic at the time of the murder,’’ they said.

“At trial, Mr Carter explained that he had seen the devil and that the devil had spoken to him at the time that he said he witnessed the assault.

“He presented on the day of the murder to Hillcrest (mental health) Hospital, where he remained for about four months.

“There he claimed: that the devil had been affecting him; that he was a psychic; that he was a millionaire; that he was a minister of religion; that he was a top footballer wanting to play for Port Adelaide that year; and that he was an expert in martial arts and a black belt in karate.”

But there’s more … The appeal court was also provided with three expert reports on the forensic pathology evidence given by Dr Colin 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.

At Bromley’s latest appeal in June 2018, 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.” See more on the Moles/Sangha analysis.

Bromley has been in jail for almost 40 years.