Andrew L. Urban
In the wake of yesterday’s story about the legal system’s reluctant response to appeals, a significant misunderstanding about what constitutes ‘fresh and compelling’ evidence is explained by legal academic Dr Bob Moles.
We wrote yesterday that “Australian legal scholars Bibi Sangha, Robert Moles and others have criticised the test as overly restrictive. They argue that the “freshness” requirement is unrealistic. The evidence must not only be persuasive but also not reasonably discoverable at trial.
The first crucial thing to note about this last requirement is that the defence is entitled to expect that the Crown will be a model litigant. How naive, as it has turned out. Bob Moles dives into the matter:
Part One
The Australian legal system has gone to great lengths to try to avoid any review of potential wrongful conviction cases.
After the statutory right to an appeal against conviction was first introduced in Australia in the early 1900s, the judges said the statute allowed for just one appeal. When we were seeking to obtain a further appeal for Henry Keogh just over 100 years later, we checked the wording of the legislation. It said nothing about only one appeal. It merely said ‘a person may appeal’ and then specified the grounds for bringing an appeal. The judges had just invented the one appeal limit.
However, the appeal court and the High Court regularly referred to ‘the petition procedure’ for exceptional cases. This allowed a person to petition the Attorney-General (AG) to refer the matter back to the court for another appeal. When we checked the cases on that we found the judges had ‘fixed’ that option as well. In Von Einem v Griffin 1998, the court said the statute gave no rights to the applicant and imposed no duty upon the AG. The AG had an ‘unfettered discretion’ and could refuse a petition for any reason or no reason at all. As we explained in our book Miscarriages of Justice and Criminal Appeals (2015) that interpretation of the law was unconstitutional and contrary to well-established legal authority.
Eventually, we managed to persuade the SA parliament that the current law on this issue was contrary to the International Covenant on Civil and Political Rights (ICCPR). So, legislation was passed to create a right to a second or further appeal in South Australia – subsequently adopted with various adjustments in all other jurisdictions apart from NSW and the NT. It was decided that the test for access to the courts for a further appeal had to pass a higher hurdle than that for a first appeal. That requirement overlooked the provision in the ICCPR which said that at each level of appeal all applicants had to be treated ‘equally’. If the Crown withheld crucial information at the first appeal why should the appellant be at a greater disadvantage in bringing that information to the attention of the appeal court?
The new test for leave to appeal required the applicant to provide ‘fresh and compelling evidence’ of wrongful conviction. Some people have interpreted that to mean evidence which only came to light after the trial was concluded – but that is not correct. In R v Drummond, Peek J explained it as follows:
At trial the accused may rely upon the fact that the Crown will not use evidence which is false or misleading. The accused is not required to use ‘due diligence’ at the time of the trial to identify any possible shortcomings in the evidence put forward by the Crown.
However, if after the trial, the now convicted person finds that some of the evidence produced at trial was in fact false or misleading, then that ‘discovery’ will render that evidence ‘fresh’ for the purposes of a further appeal. It will no doubt also be ‘compelling’ according to Peek J.
That is why I have maintained that the errors identified in the prosecution’s case in the case of Susan Neill-Fraser will satisfy the test for fresh and compelling evidence on a further appeal – the fact that luminol (a preliminary screening test) was used to identify blood on the boat and the dinghy without a follow-up confirmatory test, should be quite sufficient for that purpose. R v Keith Smart [2008] VSC. Once there is some fresh and compelling evidence to trigger a further appeal, any further additional evidence or argument to establish a wrongful conviction becomes admissible just as it would on a first appeal – see R v Keogh (No 2) 2014.
Unfortunately, the limitation of the new appeal right to fresh and compelling ‘evidence’, does not extend the appeal right to those cases based upon ‘non-evidential’ errors. A judicial or prosecutorial mis-direction or incorrect submission to a jury is not captured by the new appeal right. It should be observed that a referral by the Criminal Cases Review Commission in the UK refers to a matter involving new evidence or ‘argument’ as a ground for a further appeal. Those issues would still need to be dealt with by the petition procedure despite the existence of the new appeal right.
See Bibi Sangha, Australia’s Criminal Appeal Rights – Heading in the Wrong Direction? (2025) 47 Criminal Law Journal 586 which outlines the new appeal rights as adopted by each jurisdiction.
Part Two
The case of Derek Bromley raises new issues for the adequacy of the new right of appeal.
At his appeal hearing, Mr Bromley had eight leading and well-credentialed experts who all agreed that the evidence given at his trial was misleading and fundamentally flawed. Two of them (one on each of the two grounds of appeal) were crown-appointed experts. They were both in full agreement with the defence-appointed experts. There is legal authority in Australia which states that where there is unchallenged expert opinion evidence a decision which is contrary to that opinion would not be reasonable. Where the evidence of the expert is only required to raise a reasonable doubt (as on an appeal) then even more is required to enable the jury (or court) to act contrary to that evidence. See Miscarriages of Justice at 9.6 discussing R v Klamo (2008) VR.
The appeal judges did say that they accepted the expert opinion evidence. At that stage, they should have granted leave to appeal, allowed the appeal and entered a verdict of acquittal. Instead they went on to refuse leave to appeal.
The judges said that the opinions of the experts would have to be ‘discounted’ (disregarded) because they had not reviewed all of the other evidence at the trial – and other evidence not produced at trial. As a result, their opinions were incomplete.
It is important to appreciate that upon being requested to provide an opinion for legal proceedings, the expert is given a letter of instruction by the instructing solicitor. They are required to act strictly in accordance with their instructions. They must certify that their opinions have been based ‘wholly or substantially’ upon their expert knowledge which is based upon established scientific principles.
The materials which they are required to examine are provided to them along with the instructions. The forensic pathologist experts on the appeal were given the autopsy report completed by the crown witness at trial along with a transcript of his evidence. They were also provided with copies of the reports of the other experts giving evidence on the appeal.
Neither the DPP nor the defence solicitor asked the experts to examine the statements or evidence of the other witnesses at the trial. If they had been asked to do so the experts would have been obliged to decline the invitation. This is because expert witnesses at trial or on an appeal can only express an opinion on a matter which is beyond the ability of ordinary jury members to work out for themselves.
In this case the forensic pathologists had to deal with circumstances relating to a body submerged in a river for five days before being discovered. What effect did the putrefactive changes have on the ability to determine the manner and cause of death?
The forensic psychologists and psychiatrists had to explain what effect the eye witness’s ‘schizo-affective disorder’ had upon his ability to observe, record and remember what he claimed to have witnessed when the assault was said to have occurred.
Each of those tasks required the expert witnesses to explain to the jury the science behind their reasoning which led to their conclusions. That was obviously beyond the capacity of jury members to work out for themselves. However, when it comes to assessing ‘the other evidence in the case’, that is precisely what the jury are there to do. That means that the expert witnesses cannot do that task. The law says quite clearly that expert witnesses can only give opinions which are beyond the ability of ordinary people, without that expertise, to work out for themselves.
So, when the judge said the experts should have examined the ‘other evidence’ given at trial, the simple answer is that
- They were not asked to do that – so they could not do that;
- It was a task assigned to the jury to do – so they (the experts) could not do that.
It we go back to what Peek J said in R v Drummond:
The prosecution must not lead evidence at trial which is either false or misleading.
If after a trial it is found that they have done so, then that is sufficient for the grant of leave to appeal.
The experts on the appeal all said that the evidence given at Mr Bromley’s trial was false and misleading.
The judges said that they accepted the opinions expressed in the expert reports.
Therefore, it follows, as mentioned above, that they should have granted leave to appeal and overturned the conviction.
To minimise the effect of those expert opinions by asserting that the experts should have done what they were not asked to do – and what the law said they must not do – was what we call a breach of judicial duty. Just as it was when the judges first said there was a right to only one appeal, or when they said that an Attorney-General had an ‘unfettered discretion’ when dealing with a petition.
This situation was particularly disturbing because the forensic pathology experts had given almost identical evidence at the Henry Keogh appeal. The judges there said it was sufficient to warrant the appeal being allowed and the conviction being overturned. Yet when the same experts gave almost identical evidence on the Bromley appeal the judges invented a wholly new explanation for rejecting it. When we say ‘new’ we mean that there had not been any previous case in the law reports where expert opinion evidence had been rejected on the basis of such reasoning. Why would they have done such a thing? Mr Bromley had been in prison for over 40 years and is an aboriginal person. Could either of those factors have influenced the court in arriving at their conclusions?
See Bob Moles, The unfortunate background to Derek Bromley’s Criminal Appeal (2025) 47 Criminal Law Journal 577 for a more detailed discussion of these issues. In that paper, readers will find the following: “Earlier attempts to bring these matters before the courts were blocked for some 13 years by the use of 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.”
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The author investigates the circumstances that led to the trial and conviction of child welfare officer Frank Valentine on charges of historical sexual and physical abuse at the Parramatta Training School for Girls decades earlier. It is his fifth book exposing what he considers to be unsafe convictions.
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