“The lawyer who may knock over one of the worst miscarriages of justice in Australia may not even need to be a criminal lawyer… just a basic understanding of civil procedure may be all that is necessary.” Flinders University legal academic DR BOB MOLES examines a simpler way to overturn wrongful convictions in the Colin Manock scandal. “And when that is successful, it will lead to the overturning of another 400 similar and very important cases. In addition to a class action for another 10,000 cases.”
In December 2023 three of the five judges in the High Court refused Derek Bromley’s application for leave to appeal. The other two judges in their dissenting judgment stated: leave to appeal should be granted; it should be determined that there had been a substantial miscarriage of justice; the conviction should be overturned; a verdict of acquittal should be entered so there could be no further retrial.
A refusal of leave means that the jurisdiction of the court has not been engaged.
A conviction requires guilt to be established ‘beyond a reasonable doubt’. One might think that a determination by two judges of Australia’s highest court to state that there has been ‘a substantial miscarriage of justice’ would constitute a ‘reasonable doubt’.
Instead of initiating a fresh appeal under the new right of appeal, as Bromley is entitled to do, we suggest that it would be far simpler to bring a fresh action based upon the fact that his conviction was obtained by fraud. We have published chapters on this issue in each of our two previous textbooks and in the Australian Bar Review. The key points to that action are as follows:
The courts state that ‘fraud unravels everything’.
Certiorari: the quashing or setting aside of a judgment of a court is the appropriate remedy. It is not an appeal.
The action is commenced by an originating summons in the civil jurisdiction of the court – even when dealing with a criminal conviction. The standard of proof is on the balance of probabilities or a significant possibility. It can be filed without leave in the Supreme Court and be heard by a single judge.
The duty of disclosure can be a key issue in determining if fraud has occurred. Concealing or failing to disclose evidence as to the credibility or competence of a witness may amount to a fraudulent misrepresentation as to their honesty and skill. It may constitute perjury and involve conspiracy and subornation of perjury.
Suppression of the truth has the same effect as putting forward a falsity and may distort the process leading to a conviction.
The duty of disclosure is ‘to the court’ not to the defendant, although the defendant will clearly have the benefit of any such disclosure.
This is an extract from a briefing paper by Dr Moles.
This is an interesting development.
Is Dr. Moles correct in his analysis?
(i.e. that a fraud action in a Civil Court is a path which if taken could lead to the quashing of Derek Bromley’s conviction?)
Is such a path potentially available to Sue Neill-Fraser?
Are there cases in Australian courts which have succeeded along these lines? I’d like to read about some.
I don’t know if people generally know or understand that , even if you are not found innocent , under whatever proceedings you engage , you are entitled to sue the DPP for malicious prosecution . A win against DPP in malicious prosecution does 2 things . 1. It means the DPP and the prosecutor representing them , have some serious questions to answer and 2 it confirms a reasonable doubt. By definition you are innocent. Malicious prosecution establishes misconduct to a level of illegality. I do not want to die with a conviction that I acted inappropriately with a child. I spent my life protecting children , trying to teach them right from wrong , and some fundamental principles . I now believe that there is malice in some kids no matter who their teacher and mentor. When did a child become evil ? At birth or over time. ? In the Uk many years ago two 11 year old boys killed a toddler . I rest my case. ! When my accuser was 12 -15 years old she lied cheated and stole. Yet at law she was a child. In some people there is no absence of malice. When my kids were 8 year old twins , my accuser punched them in the back to wind them and took them up a whole flight of stairs by the hair. They did not tell us until the accusation against me occurred . If only we’d known. Perjury just rolled off her tongue like water off a ducks back , aided and abetted by DPP and A corrupt detective. Pv
Action for malicious prosecution can only be brought after a successful appeal, as I understand it.
Andrew – Wasn’t the conviction of Lindy and Michael Chamberlain (Sue Neill-Fraser and Scott Austic) obtained by fraud ? If I was on that jury and I was informed by a hot shot forensic that fetal blood was sprayed around inside the famous Holden , my verdict would be guilty . That fraudulent evidence sure fits the screenplay – the much loved baby girls throat was slashed while Lindy was sitting in the front seat of the Holden. I dont allow food or drink in my 911. How dare you present that fraud to a jury ! Is not fraudulent flexible forensics a criminal offence ? Bloody should be – about time these police / prosecutors get a year or forty in the pen…
Andrew – It’s encouraging to read of a possible correction – a fearful 40 year imprisonment of an innocent citizen. However,I have little doubt this seeming common sense remedy will be fought tooth and nail –
Andrew. Was Peter Versi found guilty of committing an offence in a place that didn’t exist ? How can that be so ? Juries must publicly justify their verdicts ..Wouldn’t that open a can of worms in the Australian courts of justice and wisdom …
When police asked AP the circumstances under which I offended . She described me coming from a room that did not exist until 4 years later. The police I now deal with said I myst have had a terrible lawyer.
That may be so , I said , but the police who took that version of events had information in their own brief , which clearly proved the room was not yet built. With that at their disposal , did they say ‘ AP that room you described in detail as the scene in 1986 could not be . The plans were not approved to build it till Oct 1988 and based on the builders evidence it was not completed till early 1990.
The police accepted her statement without question!!!! None at all. 4 other major pieces of so called evidence were accepted without question yet they too were not possible based on information which also existed in the police brief.
Fraud ,,,,
Yes , they ignored exculpatory evidence and the same stuff was also made available to the DPP. It was not questioned except for one thing and that did not happen till proceedings had started and a change in prosecutor took place.
The complainant changed that component in 2011 in contradiction to all statements previously made.
Fraud. Yes. But perhaps worse. Both police and DPP accepted false statements without question even though the brief they both utilized cleared my of any wrongdoing.
That’s called perverting the course of Justice. 3 yrs in jail for the prosecutor as she warned the complainant of the problem in evidence and 3 yrs in jail for the police who coached witnesses to the point where they changed their statements to match each other ….
Fraud f’n fraud. The complainant the DPP the police and 3 witnesses gave evidence which was not physically possible with evidence supporting what I say existing within their own documents. You bastards ruined 15 years of my life .
I am loving the logic in this legal argument and look forward to it being tested in court. Always welcome Bob Moles legal reasoning and a great reporting Andrew.
“A conviction requires guilt to be established ‘beyond a reasonable doubt’.
That would suggest that a determination should be required, and defined, on what is termed an “unreasonable doubt”. I guess that the latter would effect an acquittal?
The idea that non-disclosure in Court proceedings could be termed “fraud” is interesting. Maybe instead we should strengthen the Perjury rule ability (already in place) and further enable it when dodgy and loose-with-the truth allegations arise. Should not Fraud and Perjury sit side by side as evil monsters in Court proceedings?
Once agreed upon then it can be migrated to the Family Court, a Court so in need of its previous powers, circa the early 2,000’s.