Bromley Update 27 July 2020

Where is he presently?

Derek Bromley is presently incarcerated in a low security Correctional facility and has, as of April 2020, entered his 37th year of a life sentence. He has been eligible to apply for conditional release on parole since December of 2006. He has received four notices of refusal from the Parole Board [the Board] since then despite his taking every opportunity open to him to show suitability for release and conducting himself in an overwhelmingly positive way for the past 30 years.

His most recent refusal notice was dated 3 August 2017.

He presently has no interest in making a further futile application for release on parole. [Note: The issue of parole is the subject of an upcoming post. Follow us to receive notifications]. Instead, he remains focused on the overturning of his conviction. An application in the High Court of Australia is being prepared and is expected to be completed and filed quite soon.

An application for permission to appeal against conviction in the Supreme Court of South Australia was refused:

Derek’s original trial has been the subject of all available legal avenues of appeal against conviction including first  appeal to the Supreme Court in 1985, an application for special leave to appeal to the High Court of Australia in 1986, two petitions to the Governor of South Australia seeking the return of his matter to the Supreme Court and a recent application for permission to appeal in the Supreme Court for a second time – an avenue that was not available to him until as recently as May 2013. All have failed.

On the 29th of May 2018, the South Australian Supreme Court , Court of Criminal Appeal delivered it’s decision, refusing to grant Mr Bromley’s application for permission to appeal for a second time against the conviction. The day arrived no less than four years and three months after preparations for the appeal commenced in February of 2014. The appeal was not officially commenced, with the filing of the notice of appeal, until 7th March in 2016.

It was a long and torturous process with a horrifying but not wholly unforeseen outcome, for reasons that will become clear as you follow the case.

The Court refused the applicant [Derek Bromley] permission to appeal on the basis that, ‘The new psychiatric and new pathological evidence, considered separately or as a cumulative whole, does not satisfy the requirement that the evidence be “compelling”, as it is not “highly probative in the context of the issues in dispute at the trial of the offence”.

It is this decision of the Supreme Court that  Derek hopes to have considered by the High Court of Australia [the HCA] with the expectation that they will ultimately quash the conviction and send him home.  An extraordinary legal team has taken up the task of preparing the application to the HCA.

The evidence that the Court rejected as being NOT fresh and compelling:

‘New psychiatric evidence’

The key prosecution witness at trial, claimed to have witnessed an assault involving Derek Bromley as one of the assailants, on the banks of the Torrens River in 1984. The witness was an Aboriginal man tragically suffering from schizo-affective disorder.  Immediately after the purported incident, that is within hours of it, he was taken to and admitted to the Hillcrest Psychiatric Hospital where he remained for several months. His evidence was critical to the Crown’s case against Derek at the trial – in fact the Judge stated in his directions to the jury, repeating the words of the prosecutor, that the evidence of this witness ‘is so crucial to the Crown case’. In other words the mental state and the reliability of this witness was the main issue at the trial.  

On the appeal five expert witnesses, two psychologists and three psychiatrists  ‘were advising the court, that the nature of [the purported eye-witness’s] illness means that his cognitive processes (mental, visual and audible) were so fundamentally compromised by his malfunctioning neurological processes, that he was not capable of knowing himself as to which bits of his knowledge were products of his distorted mental processes or of his visual or audible experiences.’ (Moles and Sangha, 2019, p36 http://netk.net.au/Bromley/Bromley35.pdf )

Nevertheless the court of criminal appeal found that the new evidence was not compelling.

‘The new pathology evidence’

At the trial the Crown also relied  heavily upon the then Chief Forensic Pathologist Dr Colin Manock as to the time and cause of death and timing and nature of any injuries found on the body. Dr Manock performed the autopsy early on the morning of 9 April 1984 within hours of the discovery of the body floating near the Morphett Bridge in the Torrens River.

At the time of the trial it was accepted that Dr Manock was a suitably trained, experienced and competent forensic pathologist. As asserted in the Research Report produced by  Moles and Sangha, [2019, pages 46 – 68    http://netk.net.au/Bromley/Bromley35.pdf ] Dr Manock’s credentials were obscenely inadequate for the purpose of giving evidence in a criminal trial. In addition there is a trail of misconduct and error by the Doctor on the record, occurring whilst he was an employee of the State  (and with the knowledge of the State). He was presented by the Crown frequently as a witness a criminal trials over nearly three decades.

Most of his opinion in regard to the critical issues in the Bromley murder trial, were unsupported by scientific fact, but at the time, it was highly persuasive in support of the prosecution case. The jury were entitled to rely on the evidence of a witness presented to them as an expert with the necessary training, knowledge and experience to give an opinion.  

The three expert forensic pathologists’ ‘ . . . opinions on the appeal not only failed to support Dr Manock’s findings but were contradictory of many if not most of them. They were unable to support his diagnosis of death by drowning; their finding with regard to timing and causes of the injuries contradicted Dr Manock’s statement that ‘there was nothing to suggest the bruises occurred after death’ or that ‘all of the bruising occurred at about the same time. Dr Manock’s suggestion that some of the injuries may have been caused ‘within the last few minutes of life’ clearly had no support from the experts on the appeal, although it would have been severely prejudicial to the accused at the time of his trial.’  (Moles and Sangha, 2019, p 59 http://netk.net.au/Bromley/Bromley35.pdf )

The Supreme Court of South Australia is of the opinion that the new psychiatric and pathology evidence is not compelling.

Why are we going to the High Court of Australia?

Derek will appeal against the decision of Supreme Court. He stands by his submissions that the evidence of the eight experts is fresh and compelling and that he ought to have been given permission to appeal.  

The HCA won’t automatically hear an appeal, rather Derek must have an application for Special Leave to Appeal filed on his behalf. The preparation of an application is under way and nearing completion.

Once it is filed it will await a hearing of the application.  When a special leave application is granted by the HCA the matter will then be heard as an appeal. After hearing the appeal the HCA will decide whether Derek ought to have been given permission to appeal and if so whether a substantial miscarriage of justice occurred at the trial of the offence. On a finding that Derek has suffered a substantial miscarriage of justice the Court will quash the murder conviction. Miscarriages of justice often end in the whole matter undergoing a fresh trial of the offence. In Derek’s case we would be expected that a re-trial is highly unlikely. There is nothing, humanly speaking, that is assured, however, there are good prospects for success.

For a comprehensive ‘Research Report with regard to R v Bromley [2018] SASC 41 (the Supreme Court appeal) go to:

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5 Comments Add yours

  1. Ianthe Lycos says:

    Will Derek take this to the High Court in Canberra

    Like

    1. robynmilera2020 says:

      Until there is a hearing scheduled we won’t know where it will be heard. With Covid the HCA has not been travelling about much but it can hear applications anywhere in the country.
      Sorry I took so long to answer. I’m still learning how to use this website thingo

      Like

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    1. robynmilera2020 says:

      Thank you so much. Please stay in touch.

      Like

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