Andrew L. Urban.
The High Court’s unexpected decision to refuse Derek Bromley leave to appeal his murder conviction yesterday drew a considered response from Flinders University legal academic Dr Bob Moles … and perhaps a way forward to another appeal.
Moles makes the point that “If they had been sitting as a panel of three appeal judges for the initial appeal, the two dissenting judges would have won the day. But as judges of Australia’s top court, their views were outvoted by the other three judges.“Nevertheless, given the views of the dissenting judges, along with the other important evidence not yet presented as part of the appeal process, there is still hope of a successful outcome in due course.
“As we often say, the appeal process should continue until we get it right. Mr Eastman in the ACT had 11 failed attempts after his initial unsuccessful appeal. Only then was there an inquiry which identified a serious defect in his trial which led eventually to his acquittal.”
Moles went on to give an interview on radio 5AA Mornings with Graham Goodings. In part, he said:
“The High Court judgement is in many respects a very extraordinary judgement, as the judges said at the beginning of their judgement. This is merely an application for leave to appeal. I should say that the application for leave to appeal had continued through the court process for over ten years and it’s only today, ten years and seven months after the new right of appeal came in that we finally get a decision on the application for leave to appeal.
‘should have been acquitted’
“And, as the judges said, it’s very unusual for the court to give written reasons for a leave to appeal application, extensive written reasons, over 120 pages. It’s also very unusual to have a split decision on such a key issue with three of the judges deciding that the grounds are not made out.
But Justices Edelman and Steward – some very well-known and highly respected judges of the High Court – were both very clear. They said that leave should have been granted; that the appeal should have been allowed; that it was in fact a substantial miscarriage of justice – and they further said that the verdict of an acquittal should have been entered! And so, it’s three in favour of the status quo, as it were – and two of them making it very clear that this was, in fact, a wrongful conviction and Bromley should have been acquitted.”