Conviction based on fraud, appeal rejections unlawful

Andrew L. Urban.

The tone is measured, professional, but the content is explosive, exposing the litany of judicial errors that have contributed to Derek Bromley being stuck in jail for the past 40 years – for a murder conviction that has no valid legal basis. Flinders University legal academic Dr Bob Moles has compiled a 50 page report, concluding that the conviction rests on fraud: a failure to disclose the absence of relevant qualifications by the State pathologist, Dr Colin Manock. 

 In short, Bromley’s murder conviction – and its penalty of life imprisonment – was based on

1. The unreliable autopsy of the discredited State pathologist Dr Colin Manock and
2. the unreliable evidence of the eye witness Gary Carter who was suffering from a psychotic episode including hallucinations and fantasies

What is the fraud?

Dr Colin Manock

“The starting point is that there clearly was evidence, given in the Supreme Court of South Australia in the mid-1970s to the effect that Dr Manock was never qualified as a pathologist and that he had never attained any ‘expert qualifications’. This was supported by the views expressed in the Medical Board that Dr Manock had never attempted to upgrade his qualifications or skills…”

The Medical Board in 2004 found that “Dr. Manock was not trained to a high standard in his time as a forensic pathologist prior to appointment in Adelaide, and had no formal qualification in his speciality. The Fellowship of the College of Pathology that he was subsequently awarded was conferred without any test or examination.”

‘unspeakable outrage’

“…the courts have taken the view that to secure a conviction by the use of evidence which is known to be false, misleading or fraudulent is ‘an unspeakable outrage’ and amounts to ‘criminal misconduct at the extreme end of official corruption’.”

“That being so, then each time he appeared in court to state that he was an expert or that he had expert qualifications, that statement or representation must have been false.” 

“Manock failed to disclose that fact in all the cases in which he appeared to give evidence. In knowing his claims were false the representations by him to the contrary would then have amounted to fraudulent misrepresentations. All 400+ of them.”

How inept was Manock? Moles gives an example:

“The case of Mr Marshall was most perplexing because it involved the one area where Dr Manock claimed special expertise – gunshot injuries. Mr Marshall was found dead beside his bed in his unit in Adelaide. Dr Manock had attended at the scene where Mr Marshall was found with blood pooling around his head. Dr Manock said that Marshall must have fallen out of bed and hit his head. A media report stated, ‘there being nothing suspicious’, the body was taken to the mortuary, where nothing was done until the following day. In the interim, the ‘crime-scene’ had been cleaned. During the autopsy, a routine x-ray examination of the body revealed ‘an opaque object (a bullet) was lodged in his brain. Dr Manock seems not to have noticed that.

“A more recent media report arising from a cold-case review stated that Mr Marshall must have been asleep in bed when a gunman leaned through his bedroom window and executed him with a single shot to the left temple. It said, ‘the speckling indicates the weapon was fired in proximity to his face.’ He then appears to have rolled off the bed and died on the floor where he was found hours later. The media report stated that Dr Manock initially suspected he had died from a brain aneurysm because of the quantity of blood on his face, head and his pillow. However, an aneurism, is an internal bleeding due to a ruptured blood vessel. It does not explain how blood could escape from the closed confines of the skull. It does not explain how Dr Manock failed to identify the source of the blood on the floor (the hole in the skull) before authorizing the removal of the body.”

And to further impact the injustice done to Bromley, the appeal courts have all contributed to his continuing imprisonment.

Derek Bromley (2009)

“We now have eight of the country’s most eminent expert witnesses who are all agreed that the evidence given at Mr Bromley’s trial was either false and misleading (forensic pathology) or otherwise inadequate and misleading (psychiatry and psychology). On each issue, the Crown’s own appointed expert is in full agreement with the defence experts. It is clearly astonishing that such overwhelming evidence is deemed insufficient for even the grant of leave to appeal,” notes Moles.

“We also remind ourselves that the purpose of an appeal is not to establish guilt or innocence, but merely to see if a reasonable doubt has been established about the guilt of the person convicted. In Mr Bromley’s case, it is clear that the forensic pathology evidence was given at his trial by a person now clearly established to be unqualified, incompetent and dishonest. Of that there is no doubt. Yet, it has been 23 years since the issue was first raised on national television in Australia. It has since been the subject of scores of television programs, books and articles in Australia and overseas.”  

On conflicting judgements at the High Court: “We are all familiar with the basic criminal law principle that a person can only be convicted where guilt can be established ‘beyond a reasonable doubt’. Yet the Australian criminal justice system is willing to maintain the conviction of Mr Bromley despite two judges of Australia’s highest court positively affirming that his conviction amounts to a ‘substantial miscarriage of justice’. Does this mean that their opinions are not ‘reasonable’?”

Reasonable readers might ask why the High Court would refuse to address the elephant in the room – the issue about Manock – and directly forbid the defence to mention anything about him whilst the prosecutor and the judges themselves make frequent references to his evidence – in support of their views.

Moles’ report also examines how appeal courts treated scientific evidence:

Discounting the scientific evidence – an own goal for the DPP

At first glance it seems rather strange that the High Court would find that the unanimous opinions of five of Australia’s leading experts on psychology and psychiatry are either unsound or unreliable – and at the same time find that the uncorroborated evidence of a man known to be psychotic and suffering from hallucinations and delusions is in fact reliable. It is reminiscent of the finding of the 2018-2019 inquiry into the case of Kathleen Folbigg which found that the opinions of around 150 experts as to the cause of death was not as compelling as the somewhat ambiguous entries in the diary of a grief-stricken mother.100 The other striking parallel is between the judicial findings on the first and second Folbigg inquiry and those of the judges in the Bromley High Court. Each case involved judicial findings which at first negated the effect of the scientific evidence. Those findings were then followed (or accompanied) by other judicial findings which found the same scientific evidence to be reliable and determinative of the appeal.

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“Most importantly, the experts on the appeal informed the courts that considerable progress in research had taken place on these issues over the last 40 years. They expressed the view that it would not have been possible for the jury at the time of Mr Bromley’s trial to have appreciated the true nature and extent of these problems. This was partly because no expert witnesses had been called by either the prosecution or defence at the time of the trial to assist them. In their view it was very clear that it was not possible for people untrained in these areas, to properly comprehend the issues involved. In addition, the way in which these issues were explained to the jury by the prosecution and the judge were either incorrect or insufficient to enable them to have a proper grasp of the complexities involved.”

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Dr Bob Moles

The High Court judges might well say that the reasons on the Bromley appeal do not constitute precedents. It is equally clear that if their reasons are left unchallenged, they will provide a powerful disincentive to experts getting involved in these cases. At the same time, they will encourage prosecutors to maintain unmeritorious objections to the overturning of wrongful convictions.

See the full report