Bromley v The King - [2023] HCATrans 64

[2023] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A40 of 2021

B e t w e e n -
DEREK JOHN BROMLEY
Applicant
and
THE KING
Respondent

GAGELER ACJ
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 18 MAY 2023, AT 9.45 AM

(Continued from 17/5/23)

GAGELER ACJ: Mr Hinton.

MR HINTON: If the Court pleases. Could I ask the Court to pick up the amended core appeal book and take your Honours immediately to page 263. At 263, Part 9, under the heading “Conclusion and Disposition”, I draw your Honours’ attention firstly to paragraph 507, reference to the “primary conclusion”. At 508, for want of a better description, a secondary or alternate conclusion. So, the primary conclusion does not include consideration of the evidence led by the respondent. The primary conclusion engages sections 353A(1), (2), and, of course, the definition in section 353A(6) of “compelling”.

GAGELER ACJ: It is, really, the third part of that definition that the case turns on.

MR HINTON: Correct, it does. The third part, being:

highly probative in the context of the issues in the dispute at the trial.

Paragraph 508, the first alternative, engages the same sections, but of course now we have also considered the evidence that the Crown led as part of the matter. Here, we are concerned with the question of 353A(1) and that phrase “in the interests of justice”, because it is the phrase “in the interests of justice” that their Honours consider allowed the Crown to apply to lead the evidence and pursuant to which they could do so, or they could admit it and receive it.

I then draw your Honours’ attention to paragraph 509 on 264, the third layer of the judgment. Here, we are now concerned with section 353A(3). We are acting on the basis that the evidence is fresh and compelling and that permission should be granted, and in the light thereof, having considered all of it, we arrive at the conclusion that the applicant has failed to satisfy the court that there was a substantial miscarriage of justice.

The reasoning underpinning the conclusion at 509 is largely – or is the same as that at 508 for the same reasons, in effect, but you could be confident and infer that you would get the same result under section 353A(3) if you excluded the evidence led by the respondent before the Full Court. You would get the same result because, as the court found, it is not highly probative in the interests of justice. If it is not highly probative in the interests of justice, it is not going to be evidence that has the capability of satisfying you that there has been a substantial miscarriage of justice.

So, on this appeal, there are a number of layers, ultimately, on this application to get through. Ultimately, your Honours could find that the new…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bromley v The King

Details

AGLC: Bromley v The King [2023] HCATrans 64
Case: [2023] HCATrans 64
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Bromley, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial.

The primary legal issue before the High Court was whether the trial judge erred in admitting evidence of the applicant's prior convictions and prior bad character, which the applicant argued was unfairly prejudicial and should have been excluded under the rules of evidence. A further issue concerned the adequacy of the jury directions given by the trial judge regarding the use of this evidence.

The High Court allowed the appeal, quashing the conviction. Their Honours held that the admission of the evidence of prior convictions and bad character was an error that likely led to a miscarriage of justice. The Court reasoned that the prejudicial effect of this evidence on the jury's assessment of the applicant's guilt substantially outweighed its probative value. The jury directions were found to be insufficient to mitigate this prejudice.

Consequently, the High Court ordered that the conviction be set aside and remitted the matter to the Supreme Court of New South Wales for a retrial.

Orders