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.”
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Reminds me of this article about the High Court’s disgraceful 3-2 stuff-up in the Lindy Chamberlain High Court appeal: https://www.canberratimes.com.au/story/6037599/a-dingo-took-baby-azaria-chamberlain-the-case-that-shattered-faith-in-the-jury-system/.
I once read Lionel Murphy’s dissenting opinion in that Lindy Chamberlain HCA stuff-up.
With hindsight, it’s apparent that Murphy’s opinion was totally logical, totally convincing, impossible to disagree with, and exactly what we know with hindsight was the reality. Yet three blinded HCA Judges weirdly did not agree with Murphy. And I think – this bit is really important – those three Judges failed to give any decent reasons why Murphy’s dissenting opinion was incorrect. Those three Judges just stated their narrow viewpoint without seeing the reality which Murphy saw. Blinded.
Michael Kirby recently more or less explained why the HCA goes so haywire at https://lsj.com.au/articles/kathleen-folbigg-and-the-fragility-of-the-criminal-justice-system/. I think Kirby doesn’t quite go far enough – we need good caring legal people like him to help find the solutions, which might be that an Aussie CCRC needs to be formed asap with good people like Michael Kirby, Peter McClellan, Tom Bathurst and Stephen Rothman – all of whom have a proven track record in the area of rectifying injustice – involved in the Aussie CCRC in some way. I think that would overcome the problems Kirby identifies for HC appeals such as “not enough time”, and also overcome the concerns that people like Michele Ruyters (ref 55 minute video https://www.youtube.com/watch?v=NBNHTCeGU3Y) have that an Aussie CCRC – if not set up properly – might be no better than the existing High Court appeal procedures which Kirby more or less described above as being inadequate.
I recommend readers follow the links Peter provides – informative and thought provoking both about the vagaries of jury trials and the weaknesses in the High Court appeal system. It would be encouraging if the legal profession took these issues to heart and made a start at reform.
Weakness lies with corrupt lawyers
Kirby more ir less explained?
Either he explained or he didn’t explain.
Kirby explains that Kirby himself was a conscientious High Court Judge but he was part of the High Court decision that got the Folbigg decision wrong.
It’s not corruption – it’s honest mistakes by the High Court.
I don’t think Kirby can fully explain why the High Court got it wrong, because he doesn’t fully understand why, but Kirby can “more or less” explain … that it’s partly because the High Court Judges lacked the time to examine the case properly, so they’re just guessing.
Much much better would be to have a properly funded CCRC in Australia. Virtually everyone says we need a CCRC, but nobody in power has done anything sensible about that, so far.
I knew at the time that Lindy wasn’t guilty: the evidence of the Tasmanian couple who were with Lindy and Michael at the campfire when they all heard the baby cry in the tent. Lindy got up to see to Azaria, over there in the tent, and without delay discovered Azaria gone and called out to the others.
The jury members had that information before them … and chose to ignore it.
[https://en.wikipedia.org/wiki/Lindy_Chamberlain-Creighton]