Bromley v The King

Case [2023] HCA 42

HIGH COURT OF AUSTRALIA

GAGELER CJ,
EDELMAN, STEWARD, GLEESON AND JAGOT JJ

DEREK JOHN BROMLEY  APPLICANT

AND

THE KING  RESPONDENT

Bromley v The King

[2023] HCA 42

Date of Hearing: 17 & 18 May 2023
Date of Judgment: 13 December 2023

A40/2021

ORDER

Application for special leave to appeal dismissed.

On appeal from the Supreme Court of South Australia

Representation

S J Keim SC with S T Lane for the applicant (instructed by Stanley Law)

M G Hinton KC with W M Scobie for the respondent (instructed by Director of Public Prosecutions (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Bromley v The King

Criminal law – Appeal against conviction – Second or subsequent appeal – Where applicant convicted of murder in 1985 – Where applicant's conviction depended to considerable extent upon evidence of witness with schizophrenia or schizoaffective disorder – Where reliability of witness' evidence was relevant issue at trial – Where applicant applied for permission to appeal pursuant to s 353A(1) of Criminal Law Consolidation Act 1935 (SA) ("CLCA") – Where s 353A(1) of CLCA relevantly provided "Full Court may hear a second or subsequent appeal against conviction ... if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal" – Where fresh psychiatric and psychological evidence demonstrated developments since 1985 in field of cognitive and memory deficits in people with schizophrenia or schizoaffective disorder – Where new evidence required to be fresh and compelling – Where evidence compelling if reliable, substantial, and highly probative in context of issues in dispute at trial – Whether fresh psychiatric and psychological evidence compelling – Whether fresh psychiatric and psychological evidence highly probative of relevant issue at trial – Whether in interests of justice to consider fresh evidence on appeal – Whether substantial miscarriage of justice occurred.

High Court – Special leave to appeal – Where application for special leave did not purport to raise any question of legal principle – Where application for special leave argued on basis of interests of justice in particular case – Where Court required to reconsider evaluative conclusions of fact reached by Court below – Where exceptional procedural course taken – Where one aspect of application permitted to be subject of full argument on merits as if on appeal – Whether application for special leave ought to be granted.

Words and phrases – "cognitive and memory deficits or impairments", "compelling", "exceptional procedural course", "expert opinion", "fresh and compelling evidence", "inconsistencies and inaccuracies", "independent corroboration", "interests of justice", "jury direction", "psychiatric and psychological evidence", "reliability", "reliable, substantial, and highly probative", "second or subsequent appeal", "special leave to appeal", "substantial miscarriage of justice".

Judiciary Act 1903 (Cth), s 35A(b).
Criminal Law Consolidation Act 1935 (SA), s 353A(1).

  1. GAGELER CJ, GLEESON AND JAGOT JJ.   This Court has emphasised in the past that the jurisdiction it exercises in…

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Bromley v The King [2023] HCA 42
Case
[2023] HCA 42
Decision Date

CaseChat Overview and Summary

The High Court considered an application for special leave to appeal by the applicant, Bromley, against a decision of the South Australian Court of Criminal Appeal. Bromley had been convicted of murder in 1985, a conviction that relied significantly on the evidence of a witness, Carter, who suffered from schizophrenia or schizoaffective disorder. The central dispute revolved around whether fresh psychiatric and psychological evidence concerning the reliability of witnesses with such conditions constituted "fresh and compelling evidence" that warranted consideration on a second or subsequent appeal.

The legal issues before the High Court were whether the fresh psychiatric and psychological evidence was "compelling" within the meaning of s 353A(1) of the *Criminal Law Consolidation Act 1935* (SA), and if so, whether it was highly probative of the relevant issue at trial, which was the reliability of Carter's evidence. The Court also had to determine whether it was in the interests of justice to consider this fresh evidence on appeal and whether a substantial miscarriage of justice had occurred. The application for special leave to appeal was not argued on a question of legal principle but rather on the specific interests of justice in Bromley's case, requiring the High Court to reconsider evaluative conclusions of fact reached by the Court below.

The High Court reasoned that for evidence to be considered "compelling" under s 353A(1) of the CLCA, it must be reliable, substantial, and highly probative in the context of the issues in dispute at trial. The Court noted that the fresh psychiatric and psychological evidence, while potentially fresh, was not considered compelling because it was not highly probative of Carter's reliability as a witness. Although the experts acknowledged that individuals with schizoaffective disorder can accurately recall events and that the extent of corroboration is relevant to reliability, their initial assessments of Carter's unreliability were diminished by the lack of a full assessment of the corroborating evidence. The Court of Criminal Appeal had already concluded that the weight of this evidence was significantly reduced, and the High Court agreed with this assessment.

Consequently, the High Court dismissed the application for special leave to appeal. The Court found that the fresh evidence did not meet the threshold of being compelling and highly probative, and therefore, it was not in the interests of justice to grant a second or subsequent appeal.

Orders

Orders of the court

Application for special leave to appeal dismissed.

Background

Background to the litigation

As will be explained, in the present case the Court of Criminal Appeal was right to conclude that the fresh psychiatric and psychological evidence is not compelling as it is not highly probative in the context of the relevant issue in dispute in Bromley's trial, being the reliability of Carter's evidence identifying Bromley as the man who, with Karpany, attacked Docoza at the River Torrens in the early hours of 4 April 1984. For this reason, the application for special leave to appeal must be dismissed. Background In the joint trial of Bromley and Karpany for Docoza's murder, Bromley's case was, in part, that it had not been proved either that the deceased was murdered or, if murdered, that Bromley had any involvement in that crime. The prosecution called several witnesses, including Carter. The trial judge dealt with Carter's evidence in his summing up, including in these terms:"Whilst on the subject of witnesses, I want to say something about Gary Carter. He undoubtedly has a mental illness; undoubtedly, as Mr Borick [Counsel for Bromley] said, he was more affected by that illness on the night in question than he was when he gave evidence before you. You must, therefore, approach Gary Carter's evidence with considerable caution, especially bearing in mind as the Crown, Mr Martin, put to you, that his evidence is so crucial to the Crown case. You must scrutinise his evidence with special care. It is open to you to act on his evidence if you are convinced of its accuracy, and you should not do so without first giving careful heed to the warning that I am now giving you. There is no doubt that in some important respects he is mistaken. I say 'mistaken' because I do not think that anyone seriously suggests that he was lying. He was clearly mistaken, you may well think, in believing that all of Docoza's clothes were removed. He was clearly mistaken in believing that the accused, Bromley, laboured Docoza with the barbell. You may decide that he was right in saying that Bromley picked it up, that he may have been struck one or more glancing blows, but the fact remains that Dr Manock's evidence undoubtedly proves that Carter was mistaken as to the use made by Bromley of the barbell.Counsel mentioned other matters as well and you will bear them in mind when considering whether you can accept any part of Carter's evidence. Mr Martin argued that notwithstanding all that the defence has put to you, and some of which I mentioned, Carter was supported by independent evidence to a substantial extent, and I direct you that if after scrutinizing his evidence, and bearing in mind the warning I have just given you, if that support, if you find it exists, persuades you to accept some or a great deal of what he has said, you may do so." Bromley and Karpany were convicted of Docoza's murder on 14 March 1985. Their appeals were dismissed by the South Australian Court of Criminal Appeal[12]. In dismissing Bromley's appeal, which was brought on six grounds, including, relevantly, that the verdict against Bromley was unsafe, King CJ (with whom Mohr and O'Loughlin JJ agreed[13]) recorded that Bromley's conviction "depended to a considerable extent upon the evidence of Gary Carter", who was schizophrenic and whose history of mental illness meant that his evidence required "careful scrutiny"[14]. King CJ observed that there was a "considerable body of evidence which supported Carter's story at various points" and, having regard to the "very convincing body of evidence against Bromley", concluded that he felt no doubt that the jury's verdict was correct[15]. [12]R v Bromley and Karpany (1985) 122 LSJS 454.[13]R v Bromley and Karpany (1985) 122 LSJS 454 at 467.[14]R v Bromley and Karpany (1985) 122 LSJS 454 at 462.[15]R v Bromley and Karpany (1985) 122 LSJS 454 at 462.

Evidence

Evidence Before The Court

The respondent argued that, as the psychiatric and psychological experts all accepted that: (a) a person with schizoaffective disorder is capable of accurately recalling events; (b) the extent to which other evidence confirmed Carter's evidence would be relevant to an assessment of his reliability; and (c) they had not fully assessed the evidence that confirmed parts of Carter's evidence, their initial evidence in their reports that Carter was a wholly unreliable witness was unsustainable. In the respondent's submission, it followed that the Court of Criminal Appeal was right to conclude that the weight to be given to their evidence was significantly diminished by these circumstances, with the consequence that their evidence was not compelling, in the sense of highly probative, in the context of the issue of Carter's reliability as a witness of the events in question. The fresh psychiatric and psychological evidence It is not useful to repeat the summary of the fresh psychiatric and psychological evidence that the Court of Criminal Appeal appended to its reasons. The focus of this part of these reasons is the overall effect of the expert evidence, including the evidence given in cross‑examination, on: (a) whether accounts of past events given by persons suffering schizoaffective disorder may not be or are not reliable absent independent corroboration; and (b) the experts' approach to Carter's accounts and evidence. In evaluating whether the evidence is "compelling" within the meaning of sub‑ss (1) and (6)(b) of s 353A of the CLCA, it is the whole of the evidence which must be considered, not merely a part of the evidence. In the case of the opinion of an expert, accordingly, the opinion given in a report or reports from the expert must be considered together with any oral evidence, including evidence in cross‑examination, given by that expert. It should be recorded here that the expertise of the psychiatrists and psychologists to give the evidence they gave is not in dispute. Nor, given the focus in this Court, is it fruitful to focus on the "freshness" (or otherwise) of the evidence. The Court of Criminal Appeal was prepared to assume the freshness of the evidence[31] and, in the circumstances of the case as put in support of this application, we too adopt that approach. [31]R v Bromley [2018] SASCFC 41 at [375]. It is also common ground that schizoaffective disorder is schizophrenia together with a mood disorder. Schizophrenia is a psychotic illness. A psychotic illness involves perceptual disorders including delusions (fixed beliefs in something false) and hallucinations (perceiving things which are not real). A mood disorder can include severe mania or severe depression. The symptoms of a mood disorder, and of psychosis, can resolve whereas the underlying schizophrenia continues. Dr Barrett's statement The experts referred to the "report" of Dr Barrett, amongst other things. This is a reference to a statement by Dr Barrett, psychiatrist, dated 6 August 1984. Dr Barrett said Carter was his patient and had been since August 1983 when he was admitted to a hospital and treated for schizoaffective disorder, a "major psychotic form of mental illness characterized by hallucinations, delusions and a disturbance of mood varying from depression to elation". Carter was hospitalised from 26 August until 23 September 1983. He was re‑admitted between 6 and 17 October 1983 and was subsequently treated as an outpatient. Carter failed to attend as an outpatient from the beginning of 1984. The balance of Dr Barrett's statement should be recorded in full. It said:"He was readmitted on 4/4/84, presenting on this occasion with delusional beliefs of a persecutory and grandiose nature, viz. That the devil was affecting him, that he was a psychic, that he was a minister of religion, a top footballer and an expert in martial arts. A history was elicited from his family that he had gradually been [deteriorating] over the four weeks prior to admission. His mood at the time of admission was noted to be extremely elated, euphoric and expansive. This constellation is commonly referred to in psychiatric terms as a hypo‑manic phase of a psycho‑affective disorder. On admission he also gave a history to the admitting medical officer that he had seen two aboriginal men beating up a drug addict and throwing him into the river. He was treated as an inpatient at Hillcrest Hospital under a custody order of the guardianship board until 13/7/84, when he commenced a period of extended trial leave, living at the address of his mother and attending the Hospital day clinic. In my opinion his mental state has stabilized sufficiently to enable him to understand the proceedings of the court and to competently give evidence to the court. It is also my opinion that a distinction in quality can be drawn between his delusional beliefs and the account which he gave of events which allegedly took place on the date of his admission. Whereas the former are characterized by the grandiose belief that he is someone who has exceptional power and qualities, the latter account is not. That is to say it is my opinion that his description of events was not a product of delusional thinking or of hallucinated experience."

Decision

Reasons for decision

GAGELER CJ, GLEESON AND JAGOT JJ

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Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, GLEESON AND JAGOT JJ

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