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.
I should have mentioned that it was Susan Neill-Fraser’s case to which I was referring when mentioning Justice Blow, DPP Ellis and Dtv. Sinnitt.
For the avid reader, the HCA’s decision re ‘Brawn v The King’ 2025 HCA 20 can be accessed at:
https://eresources.hcourt.gov.au/showCase/2025/HCA/20
I will need to read up on the decision … however, at first glance, the warning lights go up for me whenever I see words like “realistically” and “would” have.
Be assured that I’m not disagreeing with Monique’s,
“A new trial? Why? It is absurd. The Police need to start a new investigation. The Police got the wrong man“.
Rather, I am recalling Justice Blow’s refusal (in the Sue Neill-Fraser trial) to countenance a recall of Meaghan Vass after Dtv. Sinnitt later in the trial produced a folder (his ‘Vass File’) which had not been disclosed to the defence. It revealed that Vass’s whereabouts on the night of Bob Chappell’s disappearance were unknown … she was not at the refuge that night as had been believed, nup … the police had not been able to establish where she spent that night … and her DNA was on the ‘murder yacht’. The defence asked to have her recalled so she could be re-examined about that night … DPP Ellis opposed the recall and Justice Blow refused the recall application. Here are some of Justice Blow’s words:
Check out the use of “significant evidence“, “realistic prospect“, “significant difference“. It’s my view that somewhere in these expressions Justice Blow using safe terminology and (presumably) established legal concepts, was able to make a personal – subjective – assessment of the likelihood of Vass giving fruitful evidence on recall.
In the Brawn case, the HCA asked the question, “could the breach in the duty of disclosure could realistically have affected the reasoning of the jury?” How does one assess whether realistically non-disclosure “would” have affected the course of the trial.
I’d better read up on the HCA decision.
For the avid reader, the HCA’s decision re ‘Brawn v The King’ 2025 HCA 20 can be accessed at:
https://eresources.hcourt.gov.au/showCase/2025/HCA/20
Especially so in my State’s Supreme Court, only one unbiased justice among the rest of the Supreme Court justice appointees.
There is a particular Supreme Court case from 2006, that held 16 charge of theft, of cash and goods to the value of over 1 million dollars, plus 1 charge of fraud, and 1 charge of forgery, 1 charge of attempted murder had been laid against the defendant,
by the police detective assigned to investigate this series of criminal offences.
Apparently, this State’s then DPP had sent a notice to a secondary DPP engaged in the prosecution of the above case. The State DPP had claimed, via a phone call, to write a notice to pass on to the now deceased presiding Justice, that the case lacked the sufficiency of evidence to enable a charge of guilty, therefore the case to be discharged.
The advice had been sent from the State’s DPP office, as to the other charges, they had somehow become automatically absolved, the defendant person so charged, had then been advised she is free to walk from the Court.
Effectively, my having sent a letter that had suggested to the State’s Attorney General, that a new trial be commenced against the defendant, was met with objection.
Some 11 years thereafter, the case file… re that above case, was marked as ‘nolle prosequi’ then had laid somewhere in her office with a notice attached; keep arms length from this case file, possibly resulting from my letter… requesting a new trial be commenced.
Ultimately, the person bearing all the abovementioned charges had not faced any court trial per any level of the State’s Courts, nor any intervention by the State’s Secretary of Justice department after my phone conversation referencing this criminal case.
I allege that this Supreme Court event, after my thorough examination of all the evidence, will present itself as a cause to pervert the course of Justice.
The maximum court sentence is 14 years imprisoned
If equally examined by any other, the examiner could not fail to arrive at the same conclusion as myself.
It would not surprise me, if the case you described happened in South Australia. Perverting the course of justice is a legal term. Why don’t they call it Corruption? It is rampant. An ordinary citizen, like you and I William, is not taken seriously. In my case, detectives got it wrong, even committed crimes themselves, witnesses told lies to gain compensation, but who cares?
One Upper House Member of the South Australian Parliament, after I had pointed out (i.e blew the whistle) on a serious in a case, replied: “We have the best legal system in the world”. What a joke!
Dieter. What is needed in all Australian States and that other God Forsaken Federal Place is a Pommie style CCRC.
40 YEARS, too late for Derrick Bromley.
Dig up Ray Bailey – “they” (the dirty rotten swine) murdered the innocent little fellow ! A Wrongfull Federal 19 years for David Eastman – a typical dear brave policeman cover-up for their – Mafia drug Co- Op enterprise.
If one of my beautiful daughters married a Police Prosecutor – how horrible!
Would rather she lived in sin with a Protestant !