Bromley Update # 14, 3 February 2023

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Bromley v. The King – all documents filed!

As reported in the last update, a decision was made in the High Court of Australia on 16 September 2022, to advance the matter of Derek’s application for Special Leave for consideration by the Full Court. I can now confirm that all documents required for the application and an appeal have been filed.

No one is predicting where the case will be placed in the 2023 calendar but we hope it won’t be too long before we’re notified of the hearing details.

Derek will enter his 40th year of imprisonment in April of this year. Conceivably, reaching this milestone will co-occur with the hearing of his application and hopefully a successful appeal.

Thirty-nine years to reach ‘base camp’

Derek’s persistent pursuit of a legal or political intervention in his case, met the resistance of a systemic machine after the first refusal of an application for special leave to appeal in 1986. All sorts of issues might have whipped up contentions between Bromley and the State in the context of prison politics, but regarding his conviction, well, courts aren’t disposed by nature or authority, towards questioning the veracity of a jury verdict. It was always going to be a hard journey.

Putting several decades of persistence in a nutshell: Derek has advocated for himself in every way and from every direction he could have imagined. He has never allowed himself to be daunted by poor odds, or the disadvantaged position he occupies as a prisoner and a black one to boot. Neither has he ever considered making false confessions in order to improve prospects of release on parole. All efforts to have his conviction over turned ran into the fact that realistically there was no truly accessible pathway to justice for him in those early years of striving, however, those years netted support and placed him in the box seat for a breakthrough.

In 2013, there was finally a legislative change. The South Australian Parliament created a new right of appeal against conviction on the basis of fresh and compelling evidence following a protracted campaign for measures to address incidents of miscarriages of justice. Although the measures provided in the resulting amendments fell short of forming an independent body of review of criminal convictions, there was at least a new avenue back to the Supreme Court. Because Derek hadn’t given up, he still had the attention of advocates and was granted funding from the Federal Attorney-General’s Department for the Aboriginal Legal Rights to prepare Derek’s second appeal to the Supreme Court. He was by then 29 years into his sentence.

Fast forward ten years to the present day and he finds himself, figuratively speaking, on the steps of the High Court of Australia for the second time. It is there that the Supreme Court’s rejection of his 2018 application will be assessed. He knows he is innocent, he also knows an appeal is not about establishing actual innocence or guilt, but about adjudication of arguments on the relevant legal issues. He has been studying those arguments, reading them day and night, talking them through, trying to put himself in the mind of the Director of Public Prosecutions who is vehemently opposing him. He’s been trying to grasp in his own mind his prospects of coming home on the authority of a favorable judgment from our highest court of appeal.

His High Court application is in very skillful hands.

“Of all the hardships a person had to face, none was more punishing than the simple act of waiting”

Kaled Hosseini: ‘A Thousand Splendid Suns’ Part II, Chapter 18

So, does persistence overcome resistance?

There are hundreds of inspirational quotes about the value of persistence. Persistence is said to prevail ‘when all else fails’ (Author Unknown); persistence and determination are supposedly ‘always rewarded’ (Christine Rice); and apparently persistence will equip you to ‘paralyze resistance’ (Woody Hayes).

Does Derek Bromley’s extraordinary persistence guarantee that an appeal will be granted, or that he will even be granted the leave to appeal?

Our well-being isn’t actually hitched to our preferred outcome, the outcome we so desperately need, the one we hold to be the just one – we simply hold a sustaining expectation of good and, as Nelson Mandela said, “It always seems impossible, until its done.”