One of our readers, concerned citizen MONIQUE BERTINO-CLARKE, reflects on one of the latest decision of the High Court, which suggests it is part of a deficient system that needs to be overhauled.
From criminal lawyer Andrew Tiedt’s Post:
The High Court has unanimously quashed a conviction after the prosecution failed to disclose exculpatory material to the defence.
Mathew Brawn was charged with child sex offending in South Australia.
“The principal issue at the appellant’s trial was whether the perpetrator was the appellant or another adult member of the complainant’s community. According to one witness, the complainant said she was abused by her “uncle”. Like other children in her community, the complainant referred to elder males within that community, including [Brawn’s] father (“X”), as “uncle”.” [1]
It was not until after Brawn had been convicted and sentenced that counsel for the prosecution made defence counsel aware that, two years prior, X had himself been charged with child sex offences. [26]
Brawn “had been aware of the charges against X but had not disclosed them to his legal representatives because he did not understand the relevance or significance of that information.” [26]
The South Australian Court of Appeal refused Brawn’s appeal, finding that “there was no miscarriage of justice because [Brawn] failed to demonstrate that, had the undisclosed material been provided, his defence either “would” or “might” have been conducted differently.” [31]
The majority found that “Once it is accepted, as it was here, that there was a breach of the duty of disclosure then a miscarriage of justice will have been established if it can be concluded that the breach could realistically have affected the reasoning of the jury to the verdict of guilty that was returned. To the extent that the Court of Appeal addressed that issue by reference to whether it “would” have affected the course of the trial and thus the jury’s reasoning, their Honours erred.” [43]
The appeal was allowed, and a new trial was ordered.
Brawn v The King [2025] HCA 20
Monique’s response:
A new trial? Why? It is absurd.
The Police need to start a new investigation. The Police got the wrong man. The Police would have known about X and if they didn’t they are not worth their salt. The Prosecution potentially would have known about X.
No doubt defence was run by Legal Aid with all their deficiencies.
The HC decision for a retrial makes no sense, and shows that they are part of a deficient system that needs to be overhauled. The system is adversarial. Police and Prosecution have tunnel vision. It’s not about the Truth but rather Winning.
On at least winning Brawn should be awarded costs but because of the retrial he is again punished as he has to do this without sufficient funds and using the deficient legal aid. The cards are stacked against him.
How can he have a fair trial now that it is all over the media. And don’t be daft thinking the jury don’t read or look things up. For goodness sakes they didn’t even follow the Judges directions in the Lindy Chamberlain trial in a time before social media.
What a sham of a Judicial system we have.