Andrew L. Urban
Once revealed, fraud at trial can overturn a conviction with a simple civil hearing. It’s not a new right, but it has lain largely dormant until now. In a game changing expose, Flinders University legal academic Dr Bob Moles has published an example of how and why.
Moles says “it is an unusual and remarkably simple procedure. Leave to bring the action is not required, the application is to a single judge of the Supreme Court, it is heard as a civil matter (on a balance of probabilities) and if successful the judge can set aside a judgment of any other court including the appeal court and the High Court. The fraud issue is the only matter to be raised in the application.
“It could open a whole new avenue to deal with the worst of the wrongful conviction cases – the same procedure is available in any common law jurisdiction.”
As an example, Moles is confident that Derek Bromley can and should apply to the Supreme Court in South Australia to have his 41 year old conviction for the murder of Stephen Docoza set aside on the basis it was obtained by fraud. (Granting Derek Bromley’s application on March 27, 2024, 40 years after his 1984 murder conviction, parole board chair Frances Nelson KC commented: “He continues to maintain his innocence. He’s entitled to do that, it’s not for us to retry the issue.”)
Writing in the latest Australian Criminal Law Journal, Moles refers to “a 2014 judicial inquiry into the conviction of David Eastman in 1995, Martin AJ concluded that Eastman had been denied procedural fairness due to failures in disclosure by the prosecution of all relevant material. He said those failures related to issues which had been raised with the prosecution about the qualifications and competence of the Crown’s forensic witness in the case. They had been recorded on file by the prosecution but not disclosed. He said that file notes about other experts raising concerns in conversations should have been handed over as well as more formal statements and reports. He noted they were the standards which applied in 1995. No doubt they were also applicable at the time of Mr Bromley’s trial in 1984.
“Earlier in his career Mr Martin had been the senior prosecutor at the trial of Derek Bromley who was convicted of the murder of Stephen Docoza in 1984. It was claimed that Bromley had assaulted and then drowned Docoza in the river in Adelaide. The body was recovered five days later in an advanced state of putrefaction. The forensic evidence as to cause, timing and circumstances of the incident were central to the prosecution’s case. It was given by Dr Colin Manock who had been the chief forensic pathologist in South Australia since 1968. So, were there any deficiencies in the duty of disclosure by Mr Martin at the Bromley trial in 1984?
“Prior to his appointment in Adelaide Dr Manock had no formal training in forensic pathology. Yet, from the early 1970s he presented as a Fellow of the College of Pathology of Australasia. This prestigious qualification normally requires five years of study and two rounds of demanding examinations. However, Dr Weedon on behalf of the College said Manock was just given the certificate in 1971 ‘because of the seniority of the position he held’. All of the formal study and examination requirements were waived. This arrangement was never disclosed in any subsequent proceedings in which Dr Manock gave evidence.
“In the mid 1970’s Manock took civil action against the forensic science centre (then called the Institute of Medical and Veterinary Science) and ‘the State of South Australia’ about the terms of his employment. Dr Bonnin, then head of the forensic science centre, gave sworn evidence in the Supreme Court that Manock was ‘unable to do certifying the cause of death because of his lack in Histopathology’. He was appointed ‘in spite of his youth and inexperience and lack of a specialist qualification’. That evidence was clearly more important than the undisclosed file notes referred to by Justice Martin in the Eastman case. Yet Bonnin’s views were never disclosed in any of the subsequent 400 criminal convictions which Manock helped to secure, a significant number of which were based upon his certifications of the cause of death. Importantly, it was not disclosed by Mr Martin at Mr Bromley’s trial.
“There was, in addition, other evidence which ought to have been disclosed.
“ … prior to Bromley’s trial in 1984, there was incontrovertible evidence that Manock was not qualified or competent as a forensic pathologist or as an expert witness. Leading experts and the High Court had found that Manock’s evidence in major cases had been false or misleading. Clearly, he had not been honest about his experience and qualifications. None of this was disclosed at Mr Bromley’s trial.
“In addition, there were other important issues which occurred subsequent to Mr Bromley’s trial and which should have been disclosed to the court as part of the further appeal proceedings which commenced in 2013.
“Importantly, for our purposes, on the question of whether a decision should be rescinded on the basis of fraud, the courts have taken the view that the fraud issue is tried alone’. The High Court has referred to the need for ‘separate proceedings’ where it is alleged the judgment was obtained through fraud.
If Mr Bromley were to establish for example, that Dr Manock was not qualified to give expert evidence in court, then that would be sufficient to have the whole of his evidence excluded. It would then only be necessary to establish that it could have had some influence on the outcome of the proceedings for the conviction to be set aside.
“In the case of Moseley, it was claimed that the criminal appeal court had set aside a conviction on the basis of a fraudulent misrepresentation by a third party who had confessed to committing the crime. The prosecutor brought the fraud application by way of an originating motion in the civil jurisdiction of the court on a balance of probabilities. The application was to a single judge of the Supreme Court in the absence of a right of appeal. The prosecutor wanted the appeal court judgment to be set aside, thereby reinstating the original conviction.
“The action is commenced by an original bill to set aside a judgment based on fraud and can be filed without leave. The Supreme Court of South Australia has the same powers to control its procedures as the High Court of Chancery in England. Its equitable jurisdiction includes the jurisdiction to set aside common law judgments on the grounds of fraud. It extends, as it did in Moseley, to setting aside a criminal appeal judgment as well as a determination of a court of first instance.
“The standard of proof is on the balance of probabilities, and that remains so even where the matter to be proved involves criminal conduct or fraud. However, as the court pointed out in Moseley, the onus discharged by the defendant to secure a retrial was not proof beyond reasonable doubt, nor even proof on the balance of probabilities, but rather proof of a ‘significant possibility’ that a reasonable jury would have acquitted.
“The reference to further proceedings based upon fraud includes ‘perjury, deceit, manifest error and bad faith’. References in the cases include conduct by ‘the prosecution’ or a ‘witness’ for the prosecution who had chosen to commit perjury by concealing evidence about the credibility of a witness. The court said in such cases, the conviction had been a ‘fraud and a mockery, the result of conspiracy and subornation of perjury’.
“Certiorari, the quashing or setting aside of a prior judgment of a court, is the appropriate remedy where a conviction has been obtained by collusion or fraud. It is not an appeal.
“‘The prosecution’ does not refer to any particular body or group but includes all those responsible for the conduct of the prosecution whether one is responsible for the conduct of the other or not. It clearly includes the police and any expert witnesses called by the crown.
“It is said the suppression of the truth has the same effect as putting forward a falsity, and may therefore distort the process leading to a conviction.
If the fraud is only discovered after an appeal on other grounds is dismissed, there is no remedy, unless the court at first instance (the trial court) retains the power to set aside a judgment obtained by fraud in the exercise of a power long recognised in common law jurisdictions. This was acknowledged by Kourakis J, now chief justice in South Australia. It has been said that:
It would be a monstrous injustice if this court was disabled from bringing down a conviction which was obtained in circumstances where it should have been apparent to the prosecutor that there was no case against the applicant.
“The general power of a court to set aside its perfected judgment requires actual fraud. It is not a precondition to the exercise of the power that the party seeking to set aside the judgment exercised reasonable diligence to attempt to discover the fraud during the earlier proceedings.
“As mentioned at the outset of this article, the circumstances supporting the claim that Dr Manock was not competent to conduct autopsies or to give expert evidence in court was known by those in authority from the time he was appointed in 1968. It has been established that he has given substantive evidence which was false and misleading in many cases and evidence about his qualifications which was false and misleading in every case.
Earlier attempts to bring these matters before the courts were blocked for some 13 years by the use about the procedural technicalities of the appeal provisions. “The most recent attempt by Mr Bromley, utilising new appeal provisions, was ultimately blocked by a refusal to consider the evidence – without further explanation or reason.
“A fresh approach, based upon fraud, without any leave requirement, and based solely upon the sworn evidence of Dr Bonnin (then head of the forensic science centre, who gave sworn evidence in the Supreme Court that Manock was ‘unable to do certifying the cause of death because of his lack in Histopathology’) to the Supreme Court in the mid-1970s, given on behalf of the State of South Australia, should be sufficient and far less costly than any Royal Commission or other judicial inquiry. The same process could also be used for the other 400 convictions which Manock said he helped to secure. A Royal Commission will undoubtedly be necessary to deal with the 10,000 unlawful autopsies he is said to have undertaken.
Citations in the original article have been omitted.