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)

Copyright in the High Court of Australia

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 evidence – for want of a relatively neutral term, but inaccurate – is fresh and compelling, and the court was in error then in not granting permission but ultimately, no substantial miscarriage of justice has been established, as the court did in Van Beelen. 

Can I switch tack at that point and go to paragraph 1.d?  I am sorry to jump around a bit, but I am hoping that, in this way, I will keep to my promise of one and a half hours.  I will take your Honours to 1(d) and the issues in dispute at the trial.  The defence case – the primary defence case – was that there was no unlawful homicide.  I have given your Honours there a reference:  BA, Bromley address, applicant’s book of further material, volume 2, at 705 to 706.  That is part of Mr Borick’s address.  It is dealt with in the summing‑up, which is in the amended core appeal book at page 21 and 23 to 27.  That is the primary defence case:  there was no unlawful homicide.

Secondly, was the contention that if there was an unlawful homicide, Mr Bromley was not one of the killers, because he was not there.  A necessary adjunct to that was the contention that Mr Carter was unreliable.  And Mr George, the taxi driver – Michael George, to be distinguished from Arthur George, the pie cart operator – Michael George, the taxi driver, was right in his description of the Aboriginal man that joined Mr Carter outside Jules as being the man wearing the suit and the hat, and he described him as “dapper”.

He was right in that description because, of course, Mr Bromley, when he is seen by Constables Griggs and Burden at around 4.25 am, is not dressed as Mr George describes.  So, the issues in dispute at trial included, undoubtedly, Mr Carters unreliability.  I have given your Honours the reference to the address, volume 2 at 706, and to the summing‑up where it deals with it.

Can I jump, then – and I will come back to paragraph 1 – to paragraph 3 of my oral outline, bearing in mind the conclusion at paragraph 509 of the judgment at 264.  So, on the question of whether or not there was an unlawful homicide, the prosecution case comprised the following, and upon considering whether or not the applicant has established that there is a substantial miscarriage of justice, we invited the Court of Appeal, and indeed – sorry, the Full Court – your Honours, to consider the following.

On the first question:  was there an unlawful homicide?  I put the following nine facts to your Honours.  The body of Mr Docoza was found floating in the river on 9 April 1984 by rowers out on the lake and was recovered very soon after by police.  As I recall the witness – is now Assistant Commissioner – Mr Harvey – the witness, Harvey.

Two:  there was silt on the back and the shoulder, suggesting that the body had sunk to the bottom so that silt from the surface had sunk down and rested on it and did not reach the bottom before rising up to the top due to the effect of putrefaction.  Dr Manock gave evidence that a body will sink, initially, when the lungs, or the body, fills with water and the lungs are empty of air.  But, over time, putrefaction leads to the production of gases and the body will rise.

Three:  there were no pants on the body and no shoes or socks, but there was a shirt and a jumper.  Four:  there was nothing to suggest that Mr Docoza was other than a fit and healthy 21‑year‑old.  Five:  Mr Docoza, on the evening of 3 April, before he left home – Ms Brusnaham’s evidence establishes – left on his motorbike.  His motorbike was located in the city – Gilbert Place – on 10 April 1984, some six days after, on the Crown’s case, the murder occurred.  It was still in the city, in Gilbert Place, which is between Hindley Street and Currie Street.  So, not far away from Hindley Street.  That is five.

EDELMAN J:   So, what is the significance of that?

MR HINTON:   Sorry, your Honour.  In addition to that, Mr George gave evidence – Mr George; taxi driver George – that before the four men got back into the car at Jules, there was a discussion about “with this white man” because three Aboriginal gentlemen and one white fellow, he was being invited to join them and he said words to the effect, I have my bike, I have to get to my bike.  So, you link that circumstantial fact with the presence of the bike in the city and the fact that he left home on his bike – his motorbike.

Six:  Mr Docoza is not seen alive after 3.30 am on 4 April 1984.  3.30 am is that point in time where Michael George, taxi driver, says that all four of them get out of the taxi toward the western end of Hindley Street, and they are seen walking initially in the direction of the west parklands.  Seven was the point I just made to your Honour Justice Edelman about he had his bike and he wanted to retrieve his bike.  Eight:  Mr Docoza Senior gave evidence that his son was due to visit him on 4 April 1984 and he did not.

Nine:  the body had sustained blunt force trauma to the head and arms, and on anyone’s case, it was ante‑mortem at trial.  Dr Manock put it within the last 24 hours of life.  In particular, there was a degree of bruising to the scalp, reaching down behind the ears on both sides.  Ten ‑ ‑ ‑

STEWARD J:   Just before you go on, yesterday Mr Keim said there was no evidence of any blood loss or ‑ ‑ ‑

MR HINTON:   With respect to Mr Keim, that is incorrect.  There was an injury to the mouth.  Dr Manock’s evidence was that would have bled profusely.  It was an injury of a kind that would not likely be caused with a dumbbell or a barbell because, if it were, you would expect teeth to be missing.  But, nonetheless, it was the sort of injury that would have bled profusely, he said.

GLEESON J:   Did you have a reference to that?

MR HINTON:   We will dig it up, if your Honour pleases.

Ten:  desert boots identified by Mr Docoza Senior as being of the same kind as his son, Stephen Docoza – the victim – wore were found in the water not far from the landing.  They were found approximately two meters out from the landing by police divers on around 13 April 1984.  The laces were still tied up.  The significance of that is circumstantial fact that supports an inference that they were ripped off rather than taken off with care.  Eleven:  at trial, on anyone’s case, this man had drowned.  It was not in dispute he had drowned.

All those facts – 11 of them – point to a time of death that is consistent with the time that the Crown and Mr Carter, ultimately, puts himself, Mr Docoza, Mr Karpany, and Mr Bromley, on the banks of the River Torrens.  All those facts equally support Mr Carter’s evidence about time, about there being an assault, about the location of the assault and about Mr Docoza ending up in the river. 

Now, while I remember – because I will forget if I do not say it now – there was a suggestion yesterday in the evidence that, if Mr Bromley had put him in the river, you would expect Mr Bromley to be wet, but that was not the case.  There was no evidence and no suggestion about that at trial.  The evidence at trial was that the events all occurred in front of the Australian National Railways Rowing Club rooms on a timber landing.

It was not necessary on the landing for Mr Bromley to get wet to be physically ducking – as Mr Carter described – Mr Karpany – sorry, not Mr Karpany, Mr Docoza.  So, there was no suggestion.  It was never, ever put that he had to get wet in order to do what Mr Carter suggested.  While I am there, your Honour Justice Gleeson, the reference to the lip bleeding:  volume 1 at page 336.  So, that was the case – the Crown’s case – with respect to whether or not it was an unlawful homicide.  Now, the next question was at ‑ ‑ ‑

STEWARD J:   Can I just ask, with the landing, is it a wooden landing where the water comes straight up, or is there a gap between the river and the landing or – we may not know.

MR HINTON:   So, if your Honour were to consider that where I stand is the front doors of the Australian National Railways Rowing Club, you walk out of the front doors and the river is in front of you, travelling east‑west.  You walk across and then down an embankment, and the embankment joins the landing.  The landing is approximately, let us say, about six or seven metres in length – and it is a timber landing – to a point about one and a half metres out from the bank, and then it drops a good foot’s step to a step, and then the water.  Depending upon the water level, the step can be covered or otherwise, and there was some evidence about how low the water was at this particular time.

Now, the landing – if your Honours have P1, the black and white diagram, one reference you were not given is to, well, where is this landing.  If I could do that now again while I remember, the easiest way to do it is to take your Honours back to Register Street, running north‑south between North Terrace and Hindley Street.  It is the first street west of Morphett Street and the Morphett Street bridge.  If you draw a line continuing from the northern edge of Register Street up the page toward the river, you get to approximately the letter R and the word “Torrens”.  That is roughly where the landing and the Australian National Railways Rowing Club are.

That is also significant because your Honours will recall – and I do not want to spend too much time on this – can I indicate, just while I am at it, the original exhibits are no longer to be found.  So, what you have when you are looking at the black and white is what we understand to be P1 and we have that by virtue of a cryptic note in the right‑hand column.  We think it was the prosecutor’s column.  The photographs you have, we understand to be P3.  But you do not have all the photographs.  That also answers your Honour Justice Gleeson’s question about why do we not have the photo array for the identification procedures – P15 and P16.  They were tendered but, of course, no one has them anymore just due to the effluxion of time.

Can I take your Honours to the photographs and photograph number 1 and just explain quickly why the location of the landing and the Australian National Railways Rowing Club is important.  The first photograph you will see, you are looking north.  The photographer is standing on Morphett Street bridge looking north.  On the left-hand side, which is the western side of the railway, you will see Constable Griggs.  That is the position where he first saw Mr Bromley emerge.  Bearing in mind P1 and where we plotted the landing, from the photograph, if you were to draw a direct line from where the photographer is standing to Constable Griggs and then move on to the river, you are travelling toward the landing.

In terms of the Crown’s case, and a piece of circumstantial evidence, that is an appropriate point from which to emerge from the landing and the location at which the murder occurs for Mr Bromley.  And he is walking south, which is a significant factor.  South, away from the location.  He is on the correct side of the road, he is at an appropriate point for emerging, and he is walking south.  Behind Constable Griggs is not a sheer drop, it is a bank running down.  I just wanted to orientate your Honours as to where the landing was.  Did prosecution case continue on; did Mr Bromley kill Mr Docoza?

EDELMAN J:   Sorry, just before you move on.

MR HINTON:   Yes, your Honour.

EDELMAN J:   The landing and the rowing club.  How far below Constable Griggs would that be, from the photo?

MR HINTON:   By the time you get to the landing, you drop a considerable drop.

EDELMAN J:   And it is ‑ ‑ ‑

MR HINTON:   It would be some – sorry, your Honour.

EDELMAN J:   And then how far to the west?

MR HINTON:   How far to the west?

EDELMAN J:   There is the bank that you would go down and then you would move some distance to the west.

MR HINTON:   You would go down the bank, you would walk across the continuation of Festival Drive, then on down the bank – the riverbank – with the Australian National Railway Rowing Club to your left as you move toward the front of it to the landing.  A distance of – and I am giving evidence here, because there was no evidence in the trial about this, but it would be a distance of no more than 150 metres.

EDELMAN J:   Yes.

MR HINTON:   Give or take, 150 metres.  I want to put to your Honour seven substantive propositions – some have sub-propositions – as to why the prosecution case at trial, and still today, remains that Mr Bromley killed Mr Docoza.  The first one is that Mr George – taxi driver George – puts Mr Carter with Mr Docoza.  He identifies Mr Docoza from a photograph array, no challenge to that, and with Mr Bromley, and with Mr Karpany in Hindley Street at 3.30 am.

At that point, a sub‑reference.  There was description yesterday of the failed, or the – failed, my word, I do not think my learned friend put it quite that high – second attempt, at identification.  When your Honours look at the evidence of Mr George, taxi driver, you will see it was not failed identification.  He was given the black photographs, and he declined to make an identification because he was not sure.

He requested the colour photographs.  He had two photographs in mind and was at a degree of certainty, but it was the quality of the photographs that caused him to say, can I have the colour photographs please.  And then, when presented with them, he made the positive identification.  So, it is not a case of pick the wrong person, or could not pick anybody; it is, I definitely had two in mind, but the quality did not allow me to, did the right thing, I waited for the colour photographs.  And, at the same time, no one challenges his identification of Mr Docoza or Mr Carter. 

Now Mr George, third proposition, erroneously describes what Mr Bromley is wearing.  The prosecution put that in its address.  The judge put it in the summing‑up, front and centre.  But he still picked Mr Bromley and your Honours will recall – I think your Honour Justice Edelman referred to – it is a “curious” identification, because it not quite identification and it is not quite recognition.  But he picked him from the ‑ ‑ ‑ 

EDELMAN J:   I think, these days, an identification with different photographs after black and white photos have been shown probably would not even make it into admission.

MR HINTON:   Well, there would be a substantive argument about that.  It would depend upon the idea of transposing from one to the second; the two images, it has to be one of the two.   And you could explore that and, potentially, if a judge considered that you had narrowed it down to two and you had narrowed it down in a way that infected the quality of your identification, then yes, would exclude it.  But it would not necessarily not be admitted.  There would be a bit of work to do, let us put it that way.

EDELMAN J:   Yes.

MR HINTON:   So, he gets the identification right of Docoza, of Mr Carter, and Mr Bromley.  He cannot identify Mr Karpany because he has been out of his field of vision for most of the taxi ride into the city and whilst they are in the city.  But the important thing that supports, circumstantially, the identification is the conversation in the taxi about “just got out of gaol”.  My learned friend took your Honours to the transcript about that.  The transcript about that includes questions invited by his Honour Justice Matheson, the trial judge, and, ultimately, an indication by Mr George that the reference to “just got out of gaol” was made with respect to the man, Mr Bromley.

So, you have that circumstantial fact.  There is a discussion, “just got out of gaol”, and it is about the man he picks as Mr Bromley.  And, of course, there is no dispute.  Mr Bromley was released on 3 April, the morning before, at about 9.45 to 10.00 am.  Indeed, in his unsworn statement that was read to the jury he states:

The only mistake I made . . . was going to the city alone for a drink on my first night out of gaol.

So, he is definitely in Hindley Street and he definitely just got out of gaol.  So, the circumstantial fact is, how would Mr George, the taxi driver, just happen to know this, if it was not mentioned as he says?  And if it was mentioned, as he says, the only person who just got out of gaol was Mr Bromley, which tends to suggest, when he picks him out of a photograph array, he does pick Mr Bromley, notwithstanding that he makes an error about what he was wearing.

Now, in view of the directions, the jury must have accepted that line of reasoning.  Four, Bromley is spoken to by police at 4.25 am.  My learned friend took your Honours to that.  Spoken to by Constables Griggs and Burden.  The time is important.  We are dealing with a period of time between 3.30 am, when they leave taxi driver George, and 4.25 am, when Constables Griggs and Burden speak to Mr Bromley.

Again, as quickly as I can, can I invite your Honours to pick up my learned friend’s colour chart with the directions on it.  The submission made to your Honours was this:  simply no time for Mr Carter to have seen Mr Bromley on the bridge, bearing in mind the police movements.  Starting at number 1.  Number 1, we have the police car heading north across Morphett Street bridge then onto the Victoria Bridge as it heads towards the intersection of Montefiore Hill it becomes and War Memorial Drive.

Now, you will remember P1, the first – not P1, P3, that first photograph, the position of Mr Griggs on Morphett Street bridge.  That is where he sees Mr Bromley on the first trip over.  Now, the reason why you have to go all the way up to the intersection of War Memorial Drive and Montefiore Hill is because there is no other place you can do a U‑turn.  So, he sees him there, does the U‑turn, comes back.  As he is coming now – as the police car is now travelling south, they do again see Mr Bromley, still on the western side.  They still cannot do a U‑turn, so they get to the intersection of Hindley Street and Morphett Street where they do a U‑turn and then drive back north‑south for the second time, but now no long can see Mr Bromley; he has disappeared.

So, the clock starts running now.  From that point, they go back up War Memorial Drive, turn right, travel out to King William Street, turn right, down to North Terrace, turn right to – I think it is called Station Road, turn right, and make their way into Festival Plaza.  During this period of time, on the Crown case, Mr Carter has left the scene of the crime.  Distressed, he has made his way back across the railway yard to the pie cart which is under the Morphett Street bridge, where he gets a drink of water.  Then he makes his way up onto the bridge, and as he makes his way up onto the bridge he sees Mr Carter – sorry, Mr Bromley and Mr Karpany.  Now, there is time for that.  They have a drink of his water and then they bolt.  That is when Mr Bromley makes his way across the other side of the road.  Mr Karpany disappears and Mr Carter is left somewhere behind.  My point is there is time.  There is time for this to have occurred.

Moving on.  When police find him at 4.25 am, he is walking south.  The significance of that is, in his unsworn statement – which my learned friend did not refer to at all – he says, no, no, I am walking north; I am walking up onto the Morphett Street bridge because I have just seen the police at the intersection of Hindley Street and the bridge – about to turn right – and so to avoid them, I make my way up onto the bridge.  A point made by the prosecutor at trial is, well, that is an unusual route to take if you are trying to avoid the police, because you have nowhere to go on a bridge, as opposed to if you dip down one of the side streets.  But, in any event, he says he is walking north.  Two police officers say, no, no, it was south.  Significance – south, away from the murder scene.  When they see him, he has blood on his shirt, hand ‑ ‑ ‑

EDELMAN J:   So, why would not north also be away from the murder scene?

MR HINTON:   Because it is going toward it.

EDELMAN J:   On the bridge?

MR HINTON:   On the bridge.  Have I lost your Honour on the orientation – the third attempt to explain the layout of Adelaide?

EDELMAN J:   But the murder scene is below the bridge.

MR HINTON:   The murder scene is not below the bridge.  The murder scene is – the bridge has come to an end.

EDELMAN J:   I see.

MR HINTON:   You have, more or less, two bridges.  The first bridge, the Morphett Street bridge, gets you over the railway lines and North Terrace.  You are then back on terra firma before you join the Victoria Bridge.  So, you, in effect, have two.  Once you hit terra firma at the end of the Morphett Street bridge, you can walk down the embankment along to the river.  So, if you are walking south – sorry, if you are walking north, you are walking toward it; if you are walking south, you are walking away from it.

STEWARD J:   Just so that I am clear, at that time, the north side of Festival Drive, there are ramps on both sides of the Morphett Street bridge, on the north side?

MR HINTON:   North side, yes. 

STEWARD J:   So, there is a tunnel that goes underneath the bridge on the south side ‑ ‑ ‑

MR HINTON:   Correct.

STEWARD J:   ‑ ‑ ‑ and then it follows the bank up.

MR HINTON:   Yes.

STEWARD J:   On both sides.

MR HINTON:   Yes.

STEWARD J:   All right, thank you.

MR HINTON:   On the north, yes.  He has blood on him – circumstantial fact – blood on his jacket as well.  He gives an explanation, I was robbed.  The police officer says, show me your wallet – $60.  Can you remember the denominations?  He says – he does not say firmly, three $20 bills, he says, notes.  He says – the words are – as best as I can recall – three $20s.  But no one asked him to turn his pockets out, so we do not know what else he had; he just asked for the wallet. 

But, more importantly, Mr Bromley takes it upon himself to explain his appearance – I was robbed.  That was the point in time when he could have said, when he is plucked out of the prickle bushes, look what I have just done to myself – which is my learned friend’s point, the prickle bushes – sorry, the cactus bushes and where he is located explains why he has mud and why he has blood on him; a blood lip – I think the patch on the shoulder is quite a significant size and away from his hand.

He sees the need to explain – and not just any sort of explanation, an explanation that must involve violence:  I was robbed.  In his unsworn statement, he walks away from that explanation.  No longer is he robbed of $60 – and, curiously, he just happens to have $60 still in his wallet – now, in his unsworn statement, he has a fight with two men in a carpark where they were drinking.  So, he changed his story.

I move on.  Margaret Bromley, she notices the mud on the trousers and the shoes – mud on the shoes; the shoes are new.  Of itself, perhaps not significant; down by the banks of the river, however, you would expect, if you were involved in a tussle, and at one point you rip – cut – the trousers off a man that you would get mud on you.  But what is more important is he washes his clothes the next day.

STEWARD J:   Was there any evidence at trial about the condition of the banks that day?  Had there been rain recently?  Was ‑ ‑ ‑

MR HINTON:   No.  No evidence.

STEWARD J:   All right.  Thank you.

MR HINTON:   He washes his clothes the next day, but, curiously, he puts his shoes in the washing machine as well.  Mrs Bromley sees the jacket stain; she cannot get the stain out.  In his unsworn statement, Mr Bromley puts himself walking north – as I have said, on anyone’s case, he is in the location.  On the prosecution case, he is walking south and away.  He takes an illogical route to avoid the police – I have put that to your Honours.  He does not commit in his unsworn statement to being robbed, but says he was in a fight earlier.  He says nothing to Margaret Bromley in the days following about a robbery.  And, of course, he also says he knows Mr Karpany. 

All those facts invite a conclusion, against the background of concluding that there was an unlawful homicide, that it is likely Mr Bromley was involved, to which you add, of course, that Mr Carter puts Mr Bromley at the scene of the murder, at the time of the murder, and that Mr Carter is supported by the fact that the barbell is found two metres out from the landing.  I should add, the River Torrens is not like the Brisbane river; it does not flow.  It is a lake with a weir at one end.

So, as the jury would have been well aware, wherever the shoes were thrown, it is likely they went straight to the bottom and did not travel with any current.  The barbell was close to the landing; the shoes are in the position of the landing; he has the terrain right; he refers to a section attacked:  the body is minus its trousers, underpants, socks, and shoes; the shoes of the laces are tied up.  Mr Carter is supported on important facts, which, taken with the other seven facts I just put to your Honours, are sufficient to establish beyond reasonable doubt that Mr Bromley was the killer or one of the killers.

You can add to it – and we do – our new evidence:  the esoteric knowledge of Mr Karpany.  The esoteric knowledge of Mr Karpany supports Mr Carter and his reliability.  That is the use made of it, and then you add to it the propensity.  I will come back to the propensity and the esoteric knowledge in dealing with the second alternative.  But the propensity – the propensity suggests that if it was not Mr Bromley, then you have two men with the same disposition who just happen to be in the same location at the same time, and Mr Carter just happens to confuse them.  The prosecution case was, with respect, particularly strong and remains particularly strong.

Now, that case, because of its reliance upon Mr Carter – and your Honours are well aware now – always involved and always required a consideration of the reliability of Mr Carter.  But my submission to your Honours is that you can conclude on the evidence that the Court had that there has been no substantial miscarriage of justice without taking into account the propensity evidence or the esoteric knowledge of Mr Karpany.  You can conclude that in the same way that the Full Court did, and we embrace the Full Court’s reasoning.

STEWARD J:   Can I ask you the question I asked Mr Keim yesterday – and you may not know the answer – which was whether Mr Carter was ever himself considered to be a suspect, particularly having regard to what his sister says Mr Karpany told her?

MR HINTON:   I have seen nothing to suggest he was ever considered a suspect.

STEWARD J:   All right.  Thank you.

MR HINTON:   Can I then at this point, having made my submissions now under paragraph 3, move to 1.a of my oral hand-up.  At this point, it is a matter of considering the fresh psychiatric evidence in the light of the issues in dispute at the trial.  I have already taken your Honours to the issues in dispute at the trial and dealt with them – 1.d of my oral hand-up.

The four propositions to which my learned friend referred to and your Honours have been taken to are at pages 137 to 138 of the amended core appeal book.  My learned friend, in answer to a question – I think from your Honour Justice Jagot – indicated that he did not quibble with them, but there was some question about that “may” in the last sentence of proposition 1 contained in paragraph 38.  My answer to the same question is that that is an appropriate conclusion reached upon a consideration of the evidence of Drs Sugarman, Furst, Hook and Brereton, and Professor Coyle.  The nature of the fresh psychiatric evidence – its probative value – is linked to the question of Mr Carter’s reliability.  It is not probative directly of any other fact in issue.

Now, can I just pause here for a moment and deal with some of the questions asked late in the day, yesterday, about – I think your Honour Justice Edelman put it in terms of the nub of your complaint is the direction was inadequate.  With respect, what we are postulating now is a different trial.  If there were to be a future trial, then the direction may well be the same because at a future trial you would call Drs Sugarman, Hook, Furst, Brereton and possibly Professor Coyle.

So, we are postulating a different trial.  We cannot just say that direction is not good enough because, of course, that was a different trial and the direction was good enough for that trial, taking into account the evidence that was before the court there.  So, the error cannot be that the direction was not good enough.  We know – and if your Honours look through the evidence of the experts, you will find quickly that there is no evidence of suggestibility or suggestion, and there is no evidence of confabulation.  So, all we are left with is the anticipated impacts upon cognitive functioning that schizoaffective disorder in the acute stages can have.

EDELMAN J:   Can I just ask in relation to that then about what you say about the direction – and I appreciate that this is a point that is contested, but if the proper understanding of the expert evidence is that there is either a commonality or a best reading of all of the experts that concludes that persons suffering from schizoaffective disorder and manifesting acute symptoms of that can never be accepted without independent corroboration because it is not knowable whether their evidence is going to be reliable or fabricated, then why would it not be the case that, looking at the evidence from the point of view of a prospective or future trial, one would say that there had been a miscarriage of justice because the past trial had not involved a direction to that effect?

MR HINTON:   My answer is we are postulating a direction without the evidence because, while we have the expert evidence, we have not yet put it in the context of Mr Carter’s evidence.  By that I mean – and I put that poorly – the experts never considered the transcript of his evidence at trial and never looked at it to say, see there, confabulation, see there, that is your chance at suggestibility, see there, this is where you really see the delusion coming through and you will really have great difficulty.  So, when we look at the future, it would be in the light of that sort of exercise being undertaken that the direction would come.  The question is:  would you necessarily have to put it in terms of a corroboration warning or simply a warning?

GLEESON J:   Can I ask about this, because if, in this future hypothetical trial, the evidence would require corroboration of every piece of evidence of Mr Carter, then you would never get to the jury, would you ‑ ‑ ‑

MR HINTON:   Never.

GLEESON J:   ‑ ‑ ‑ because you would have to accept that you could not corroborate each piece of his evidence.

MR HINTON:   Correct.  And one of the concerns about going back to the necessity of corroboration – I think we have pared everything away except for accomplices as a matter of law, but if we go that high, then we ignore the circumstantial reasoning that I invited your Honours, in laying out the case as to why there was an unlawful homicide and why you could conclude on all the evidence that Mr Bromley was one of the killers – because we search, in a narrow way, just for confirmation of Mr Carter’s evidence on every respect.  And that cannot possibly be an appropriate way to reason.  That does not mean you would not need the strongest warning.

EDELMAN J:   What do you say is meant, then, by the expert evidence that is given by Dr Brereton in his report at 24.23, where he says:

I believe Mr Carter’s evidence is so inherently unreliable that almost the entirety of his account would have to be corroborated to begin to consider him reliable.  Even in these circumstances I would have grave concerns about relying in any significant way on aspects of his evidence that were uncorroborated.

MR HINTON:   I am reaching for volume 3.

EDELMAN J:   I think it is in volume 5.

MR HINTON:   Your Honour is right, it is in volume 5, but it was the subject of cross‑examination.

EDELMAN J:   Yes.

MR HINTON:   The cross‑examination – as to the paragraphs, I think it was 23.2 to 23.24, and in particular 23.25 – is particularly significant.  If my note serves me correctly, we are around page 988.  As I recall, Dr Brereton explains his conclusions in relation to this part of his report.  Page 988 deals with paragraph 24.5 of the report, and you will see the question at line 24:

Q.So, it is actually wrong to say there is simply no way of knowing what he claimed to have seen did occur or whether it was a hallucination . . . 

A.Absolutely.  I apologise – I suppose in a way what I should have said was clinically, from a clinical perspective.

EDELMAN J:   Is that not saying that with corroboration then one would know.  The previous sentence:

if someone corroborates an aspect of what he said.

MR HINTON:   Yes.  I cannot walk away, and I do not walk away, from the fact that you need supporting evidence.  I shy away from that word, “corroboration”, because of its history.  It evolves a measure of confirmation that, in my submission, is not necessarily required before you can rely upon the evidence of Mr Carter as satisfying you beyond reasonable doubt of guilt.

EDELMAN J:   Is that a submission, though – I think, to develop what Justice Gleeson put to you, one might say, for example, that you have Carter’s evidence on a particular aspect – let us say, Carter’s evidence as to where people were placed – and you might find some corroboration.  It might not be precise corroboration of the account, but there is some corroboration that might give it a degree of reliability.  Is that what your submission is?

MR HINTON:   Yes.

EDELMAN J:   Or is it broader than that?  Is it saying, well, you do not need some corroboration of each part of the event.  If you have some corroboration of other events, you can take the whole of the account, in some way, as corroborated.

MR HINTON:   I do not go so far as to say you can take the whole of the account, but you have enough to be satisfied that there was a violent assault.  Now, did it occur in the manner in which Mr Carter when he stood up just before he fell ill with a dumbbell?  In all likelihood not, and the prosecutor conceded that on the basis of Dr Manock’s evidence.  But was there a violent assault?  The dumbbell is there; there are injuries to the body; the bottom half, the pants are missing; he said they asked for sex; the body is in the river; the desert boots are where he – were in the location.  That is enough.

EDELMAN J:   The corroboration that Mr Bromley was one of the assailants is the blood?

MR HINTON:   Is the blood, taken with his unsatisfactory and changing position, taken with his identification by Mr George.

EDELMAN J:   Well, the identification by Mr George does not say anything about him being one of the assailants.

MR HINTON:   No, but it reinforces again Mr Carter.  He is with Mr Carter.  His case is, I was never with Mr Carter.

EDELMAN J:   Yes, but that – as I understood, you accepted that you are not trying to say that corroboration of one distant aspect of the account means that the entirety of the account is corroborated.

MR HINTON:   True, I am not.  I am not – for example, Mr Carter is undoubtedly wrong about the body being totally naked.  So, do I require corroboration as to all aspects?  No.  That is what I understood Justice Gleeson to be putting to me:  is it that high?  No.  But we do ‑ ‑ ‑

GLEESON J:   Did Mr Carter actually say “totally naked”?  He just said “naked”.

MR HINTON:   “Naked”.  Sorry, your Honour.  Yes, “totally” is my word, yes.

GAGELER ACJ:   None of these details of the account at the trial were explored with the expert witnesses, is that right?

MR HINTON:   There was no psychiatric evidence at the trial.

GAGELER ACJ:   No, I am sorry.  In relation to the fresh evidence, the detailed account was not put to them.  Would that be corroboration, or sufficient corroboration, in your lexicon?

MR HINTON:   Correct.  Yes, “in your lexicon”, true.  There were some things put.  For example, would it corroborate Mr Carter if Mr Karpany had said he was there, and they said, yes.  Of course, that was never part of the prosecution case at trial, but we know afterwards Mr Karpany said, yes, I was there.  So, was the Crown case at trial put in the way in which I put it to your Honours?  No.  That is one of the shortcomings that their Honours describe as diminishing the fresh evidence.

STEWARD J:   So is the net position that, on the critical aspect of Mr Carter’s evidence – namely, his eyewitness account of what occurred by the river – that account is not directly supported by any other evidence and has some clear problems with it about the way in which the victim was hit and so on, but you would suggest, nonetheless, it is sufficiently reliable because Carter is otherwise supported.

MR HINTON:   Yes.

STEWARD J:   And there is objective evidence that Mr Bromley was in the vicinity at the relevant time.

MR HINTON:   Yes.

STEWARD J:   Although, your comments about blood might be going a bit too far.  I think the evidence was they thought it was blood and, for example, from memory, the railway policeman did not see the stain, for example – or at least one of the three did not ‑ ‑ ‑

MR HINTON:   Did not see it – the railway policeman saw it on the hand, I think.  The other policeman did not.

STEWARD J:   Yes.  And they – but not on the – yes.  It is not like it is clear forensic evidence of blood.

MR HINTON:   No, no. 

STEWARD J:   It is murkier.

MR HINTON:   It is a circumstantial case, and we emphasise in our written submissions, it is, I think, the language of Justice Evatt, was the admeasuring of probability – or Justice Dixon, I am not sure which – in Martin v Osborne, it is the admeasuring of probabilities.  When we look at Mr Carter’s evidence in the light of what else we know, we have, in my submission, comfort, such that you can be satisfied beyond reasonable doubt; comfort, such that no substantial miscarriage of justice has been demonstrated.

STEWARD J:   So, that is the real issue:  whether the lack of support for Carter’s evidence about who did the striking, the hitting – that is the issue; whether what you have said is enough to get over that problem or not.

MR HINTON:   Yes.  Ultimately, yes.  And that is 509, which, at the end of the day, we have to overcome to hold the judgment.  Whatever the Court determines about “compelling”, we have to get there.

EDELMAN J:   So, there is not really any dispute between the parties that, in that crucial respect, there needs to be some corroboration based on the expert evidence.  But the question is:  What is the “some”?  How much work is being done by “some” here?

MR HINTON:   Precisely.  And demonstrated by my baulking of the word “corroboration”, with its history.  But, yes – and the discussion between your Honour Justice Steward and myself about, do we have enough.  The very reason I took your Honours ‑ ‑ ‑

GAGELER ACJ:   Mr Hinton, I can understand forensically why you want us to go to 509 and form a view on that, but, logically we do not get to that question if we do not find the evidence as compelling. 

MR HINTON:   Correct.  And I am getting there.

GAGELER ACJ:   But that is the threshold question.

MR HINTON:   No jurisdiction if it is not compelling.  Agreed.

GAGELER ACJ:   And that is the way in which the case was being determined by the court below.

MR HINTON:   But it also had its alternative propositions.

GAGELER ACJ:   Of course. 

MR HINTON:   So, all I am doing is I have worked backwards from 509 to put what our case is, and, in the course of doing so, teased out the evidence that, ultimately, is relevant to the question of whether or not it is compelling.  It is the same evidence ‑ ‑ ‑

GAGELER ACJ:   I was just taking – I am sorry.  I am just taking issue with your point that you win or lose on 509.  I do not see it that way.

MR HINTON:   Yes, your Honour is quite right.  But if you were against me that is compelling, then you get to 509. 

GAGELER ACJ:   Of course.

MR HINTON:   Yes.  So, I have now teased out this idea of directions and corroboration.  I do make one quick associated point, and it is not in our written submissions, which I apologise.  But, of course, there was a forensic decision made at this trial.  If your Honours – I will give you the references.  Early in the trial, before the prosecutor opened – volume 1, pages 8, 13 to 17, and 20 ‑ ‑ ‑

JAGOT J:   Page 813, or 8 to 13?

MR HINTON:   Pages 8 to 17, and 20, in volume 1.

JAGOT J:   And 20?

MR HINTON:   And 20.  Yes.  Sorry, your Honour.

JAGOT J:   Yes.

MR HINTON:   Maybe I will take your Honours quickly to page 8, page 8, volume 1, there is the subheading:

JURY LEAVES COURT 10.14 A.M.

They have just been empanelled.  The second full paragraph you will see.  So, the defence were alive to this fact that there is an issue about Mr Carter’s mental health and they want the opportunity to speak to Dr O’Brien.  Four paragraphs down:

HIS HONOUR INTIMATES HIS SYMPATHY –

The ruling at the bottom of the page – that does not concern your Honours.  That summary on page 8 deals with what transpires between 9 and 20.  What we learn is that the defence have Dr Barrett’s report.  Dr Barrett’s report your Honours have, and will find in volume 5, 1687.  I do not need to take your Honours to it.  The prosecutor indicates he does not intend to call Dr Barrett – that is at page 13.  Page 14:

It may be that at some point . . . we will have to seek an adjournment to get our own expert –

The concern is in particular with the last – I think it was the last paragraph of Dr Barrett’s report, and that is where Dr Barrett says you can separate out the delusional from the real, and all the experts subsequently take issue with that.  But this very question – can you separate out the real from the delusional – the defence we alive to.  They asked that the Crown not call Mr Carter as their first witness.  The Crown acceded to that and waited two days.  On the day that Mr Carter does commence his evidence – that is at 196 – Mr Borick seeks an order exempting Dr Ken O’Brien from the order as to witnesses so he can sit in and hear the evidence.  The inference from there on is that he does so.  But he is never called. 

So, my submission is there was a forensic decision made in the light of the cross‑examination of Mr Carter about his illness that was unnecessary, and I will give your Honours the references.  I am now at 1.e.  I give your Honours the references in volume 1 to the extensive evidence about the nature of Mr Carter’s illness including, along the way, the agreement by him that at the relevant time he saw the devil.  What more emphatic way to highlight the question of his reliability than for him to concede quite openly, yes, I went into Hillcrest; yes, I stayed three to four months in Hillcrest; yes, I was unwell; yes, I had been off my medication; I saw the devil, yes; yes, there were times when I talked about playing for the Port Adelaide Football Club.

The forensic decision was, we have done enough damage here, we do not need Dr O’Brien, this jury cannot possibly fail to realise that this is an unreliable witness.  That is what was put in the address.  That is what prompted the direction from Justice Matheson that found its way to this Court.  So, the whole case ultimately – and the addresses, the predominant part of them – is all about reliability.  It is all about some support and the content – to adopt what your Honour Justice Edelman said – of some support.

So, in a way – not in a way – but we are today fighting the same case over again.  And whilst there has been a deepening of understanding, the fact is the task for the jury today is no different to what it was then.  And the question of unreliability was peeled back and revealed in the most graphic and emphatic manner.  So, the new – the fresh evidence is not compelling because it does not take us anywhere, ultimately, beyond what the position was at trial with respect to that issue in dispute, being Mr Carter’s reliability.

One, there was the forensic decision.  And now, without any explanation – without any evidence from Dr O’Brien – or Mr Borick as to his decision – with respect to my learned friends, the applicant seeks to go back on.  Two, we are in no different ‑ ‑ ‑

GAGELER ACJ:   Could I just ask how that relates to the statutory criterion of being highly probative in the context of the issues in dispute at the trial?

MR HINTON:   And my answer is it is not, because the issue was already there and laid bare.  This is just – if we get ‑ ‑ ‑

GAGELER ACJ:   Sorry, I mean your emphasis on the forensic decision that was made.

MR HINTON:   My emphasis, with respect – 3.a and the definition of “compelling” is that this links to the issues in dispute at trial.  This was the way the trial was run.  You should be bound by the way the trial was run.  It is not compelling because of the way you ran the trial.  If you are to be relieved of the way in which you ran the trial, it is still not compelling because it does not take us any further than what the issue in dispute, or the dispute itself – the forensic context was at trial.

STEWARD J:   Well, that might come down to a judgment about whether a charge given by the judge about serious caution was different or would have been different to that which the new experts would have said this needed; namely, do not rely on Carter unless he is supported in some way.

MR HINTON:   Agree.  The next step is what would that have meant.  And what would it have meant?  It would have meant an assessment of his reliability.  Now, I go back a step.

EDELMAN J:   Well, Mr Hinton, as you know, before Longman, the failure, say, for a trial judge to direct a jury that, in relation to uncorroborated evidence, would have the effect that a verdict was unsafe and unsatisfactory, even if a very strong reliability warning was given.  The magic words, “corroboration”, for a very long time ‑ ‑ ‑

MR HINTON:   Back in the bad old days?

EDELMAN J:   ‑ ‑ ‑until we moved away from that were seen as very, very important.

MR HINTON:   Yes, they were.  And replaced by “scrutinise . . . with . . . care”. 

EDELMAN J:   Yes.

MR HINTON:   And, heeding this warning if, having scrutinised with care, you are still satisfied you can rely upon, then.

EDELMAN J:   But that is a big change. 

MR HINTON:   A big change?  A big change.

EDELMAN J:   That is the point, yes.  And the question here is:  is what the experts are saying the equivalent of the old position?

MR HINTON:   Yes.  And again, coming back to your “some” and how we load it up, and the “may” in paragraph 38, proposition 1. 

EDELMAN J:   Yes.

MR HINTON:   And I put, ultimately, whatever the position is, we get across the line.  Does your Honour intend to take a morning break?

GAGELER ACJ:   Well, we were proposing to do that 11.15 am, if necessary. 

MR HINTON:   Right.  I understand the time.

GAGELER ACJ:   If it would be more convenient for the presentation of your argument for us to take a break now, we can do that.

MR HINTON:   No, no.

GAGELER ACJ:   In the interests of efficiency, I am thinking.

MR HINTON:   In the interests of efficiency, hold me to my time limit, and we will press on.

EDELMAN J:   You are not strictly bound, Mr Hinton.

MR HINTON:   It is terrifying enough.  Can I give your Honours some references with respect to paragraph 1.a and what did the fresh psychiatric evidence establish.  Now, I am not going to take your Honours to them, but I wish to give you a number of page references in volume 3 that I invite your Honours, in particular, to pay attention to.  I can either rattle them off into the transcript or give your Honours a note.  What would you prefer?

GAGELER ACJ:   Give us a note. 

MR HINTON:   If your Honour pleases.  Then I was at 1.e.  I have provided your Honours with the references there about the evidence with respect to Mr Carter’s and the addresses.  The directions to the jury, we have been over that.  I have said that it added nothing, ultimately, to the forensic contest.  It was graphically brought out.  In any event, if you do not accept that, you then go on and consider the question of:  is it compelling having regard to whether or not it is highly probative?

That takes us to propositions 1, 2, 3 and 4.  You will be pleased to know that, despite all those references, I am not going to take you to them.  I put them there for your Honours.  We embrace the conclusions of the Full Court with respect to each proposition.  We have, as part of that, also ourselves looked at all the evidence that supports Mr Carter’s evidence.  I am not going to take your Honours through it, but can I invite your Honours to open the respondent’s book of further materials – a book we have not seen yet – and turn to page 4.  All I am doing, is alerting your Honours to the existence of this document – 4 to 14 – which saves me taking your Honours through all the evidence.  There, it is done in some detail for you.

So, we embrace the conclusions, propositions 1 through to 4.  We rely upon what I have put to your Honours in terms of the prosecution case with respect to the question of whether or not there was an unlawful homicide and whether or not you can conclude that Mr Bromley was one of the killers.  We rely upon our document at pages 4 to 14 as supplementing our submissions on those issues.  All that is addressed to the question of “highly probative” and the conclusion, ultimately reached, that it is not.

Can I take your Honours – I did not go to the law.  Your Honours are well aware of the relevant paragraph – paragraph 28 of Van Beelen 262 CLR 565. I will not ask your Honours to look it up now. It deals with a question of “highly probative”. But can I also take your Honours quickly to a decision that the Full Court of the Supreme Court of South Australia, R v Keogh (No 2), which is more expansive. I take your Honours to it, in 121 SASR 307.

For my purposes, on the question of “highly probative” in the context of issues in dispute at the trial of the offence, I draw your Honours’ attention to paragraphs 107 of the judgment of the court, 109 and 112.  My point in doing so is to highlight the evaluative nature of the task.  Paragraphs 107, 109 and 112.  For those reasons, in my submission, the Full Court was right in its primary conclusion, and I move, then, to paragraph 2 of my oral hand‑up.

I can be quick.  In 2.a, we embrace the Full Court’s construction of the interests of justice criterion.  That is to be found at paragraphs 382 through to 398.  And we embrace their discussion of the content of the interest of justice criteria, and the fact that that is a power which, in the appropriate circumstances, would allow a respondent – in this case the Crown, or will always be the Crown – the Crown to lead evidence, such as we did:  the evidence of the esoteric knowledge dealt with by their Honours, and the evidence of the propensity.

That evidence has dealt with the esoteric knowledge, I have given your Honours the references; and the propensity evidence, I have given your Honours the references; and the question of admissibility.  The propensity evidence is particularly strong evidence.  At 2.c, at the risk of shooting myself in the foot ‑ ‑ ‑

GLEESON J:   Just before you leave that, on that question of esoteric knowledge.

MR HINTON:   Yes, your Honour.

GLEESON J:   Do I take from that that that is the full extent of admissions that are available to be adduced from Mr Karpany at a new trial?

MR HINTON:   Yes.  Well, I have to qualify that, your Honour.  Yes, if he cooperates.

GLEESON J:   Yes.

MR HINTON:   But – and I suppose I could add – if he cooperates you would hope or expect that he would go one step further and say – I can roll it back, actually.  The esoteric knowledge you can prove without calling Mr Karpany, so it is not dependent upon his cooperations, my apologies.  If he were to cooperate, you would expect that he would give direct evidence of what occurred.

Can I deal with 2.c?  The question of construction that arises that your Honours might consider is what to make of the question of the interests of justice in the context of an application for permission, and in the context of jurisdictional facts, let us say, that enliven jurisdiction.  My point is – the point I want to make is that if your Honours were minded to construe section 35A(1) in the light of 35A(2) such that, on the question of permission, you are concerned predominantly with the evidence of the applicant and not any competing evidence, because it is a gatekeeping function, then it would not mean that we could not call the evidence because, of course, there is a power to admit fresh evidence, new evidence, on an appeal – that is to be found in 359(b) and (c) of the Criminal Law Consolidation Act – and it also invokes a test of in the interest of justice.

So, the same criteria would apply there.  No point has been made against me there, but there is this separation of permission from the ultimate question of the disposal of the substantive appeal.  The two questions, plainly, are different.

EDELMAN J:   That is really a submission that if esoteric knowledge is not admissible for the purposes referred to in paragraph 507, it would be admissible for the purposes referred to in 509.

MR HINTON:   Correct.  And if I cannot do it under 353A(1) as part of permission – and that is narrower – then I can do it later.  Yes, if your Honour pleases.  I think, if your Honour pleases, I am at an end, but if your Honour were minded to take the morning break at this point, I can double‑check.

GAGELER ACJ:   Of course.

MR HINTON:   If your Honour pleases.

GAGELER ACJ:   We will take a 15‑minute adjournment.

AT 11.06 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.18 AM:

MR HINTON:   If your Honours please.  I am at the end, but I just want to address, really briefly, one or two things arising out of my learned friend’s note from this morning.  I do not want to go through all of them, and I am not going to answer all of them.  My overarching submission is that none of them presents a solid obstacle to undertaking the sort of consideration of the objective evidence in support of Mr Carter that I put to your Honours already today can be undertaken and supports him sufficiently, such that you can conclude that the evidence is not compelling, or alternatively, that no substantive miscarriage of justice has been made out.

I want to mention one or two more things, very briefly, about what happened on the bridge.  I have already put to your Honours that passage of the police allows for time for Mr Carter to be on the bridge at the same time as Mr Bromley.  It also allows for time for Mr Carter to be on the bridge with his glass of water with Mr Bromley and Mr Karpany.  I want to make that point.  Then, there is the question of what was put to your Honours that Mr Griggs, when he is speaking to Mr Carter, notices he has his bag.  Now, your Honour Justice Steward asked a question or two about this curious bag.  It happened just to be in the nature of Mr Carter that he would collect stuff; and he would take his bag with him, and it would include stuff. 

On the night in question, three important things were:  one, the sheepskin rug; two, the barbell; and three, his cassettes.  Now, Mr George, the taxi driver, sees the cassettes.  Mr Griggs – Constable Griggs says he has his bag.  And, it is – your Honours might remember – it is described as one of those old airline bags – remember, with the shoulder strap and it is something similar to that.

But there is still time, my point is, to have seen Mr Carter with his bag, and for Mr Karpany to still be in the area and Mr Karpany to have the

bag, because we know, ultimately, that Mr Carter does not leave with the bag.  He does not have the bag the following morning, and it is found by one of the Adelaide City Council gardeners in a position on the eastern side of the Morphett Street bridge, right around where my learned friends pointed to that Stobie pole, as you come under Festival Drive, and there is the carpark and there is the Stobie pole.  In and around there it is found.

So, we know Mr Carter left the area without his bag, and we know the next morning, or the next day, he goes to see Father Pearson in the city, and Father Pearson has been in contact with his mother, and his mother tells him he is unwell, can you take him to Hillcrest?  But before they go to Hillcrest he goes to Victoria Square, because he wants to speak to Johnny Karpany, because Johnny Karpany has got his bag.  So, again, small points, but this idea that he must have had his bag, that he could not have spoken to Mr Bromley on the bridge – with respect, there is time, and it could have happened.

If your Honours please, those are my submissions.

GAGELER ACJ:   Thank you, Mr Hinton.  Mr Keim.

MR KEIM:   Thank you, your Honour.  Just with regard to the question that the applicant was not in the water, I am indebted to my learned friend to clarifying that, because it is not clear from the transcript exactly what Carter was indicating when he says he was kneeling here.  But the reason why we took a different view is that because our learned friends submit in paragraph 26.e of their written submissions that the applicant was in the water and that is how he got the mud and water on him.  He was in the water in the Torrens is what they say at paragraph 26.c and that was put forward by them in their written submissions and, I think, maintained by my learned friend that a strong aspect of the circumstantial case is that the mud came from the river.  So, to the extent that that has been, in some respect, departed from, we are indebted to our learned friends.

I am sure that this was not intended by my learned friend, but he said that Griggs and Burden saw the applicant emerge onto the bridge at a particular point.  The evidence of Burden and Griggs is that they saw him already on the bridge walking and that indicates – well, the way my learned friend puts it indicates that he had just come up from where the murder happened.  He could have come from anywhere at that point.

Just with regard to what my learned friend just addressed at the end, whether there was time or not, I will leave that to the Court, and I am not permitted to address that, but as my learned friend clarified at the end, what Carter claimed was that he saw Karpany and the applicant.  The other important aspect of the evidence is he claimed that he saw Karpany and the applicant at the point where Griggs and Burden first saw the applicant.

So, by the time that Carter sees them, when you are putting all of the jigsaw pieces together, the applicant has to have continued to walk during the first two passes and then he has to have doubled all the way back and found Karpany somewhere and joined – got Karpany to join him on the bridge and then he has to get all the way back to the embankment on the western side, down near the southern freeway.  So, my learned friend’s thesis on the basis of the evidence has the applicant going back and forth, back and forth a couple of times.

We just wanted to say this, that the test for a new trial, set over many cases, is the reasonable possibility of an acquittal.  Our learned friends have addressed the Court as if the test for a new trial is that the Crown does not have a prima facie case.  I mean, the Crown has the opportunity at any retrial, without Carter’s evidence, to run its circumstantial case, but that is a very, very different case.  If they can only use Carter’s evidence to the extent that it is properly corroborated – and we do not run away from that word – properly corroborated – then it is a much thinner case, which means that the evidence is compelling, that the new medical evidence is compelling, because it does change the nature of the Crown case.

Our learned friends spoke for some time about the forensic decision that was made.  Now, there is some authority on the effect of permission – the effect of new evidence.  That is at paragraph 232 of Keogh, and I do not think our learned addressed, at any stage, the evidentiary landscape.  We, obviously, make that a large part of our case because the effect of the new evidence disclosed, from what I just said about the nature of the Crown case at a new trial, the evidentiary landscape is changed dramatically.  But, at paragraph 232, at page 370 of the report, the Supreme Court of South Australia says:

The evidentiary landscape, within which the potential importance of the lack of histology is to be understood, has changed significantly.  In these circumstances, it would not be fair to hold the defence to any earlier forensic decision concerning this issue, if one was made.

We seek to generalise that proposition.  It should be generalised, for this reason, that the psychiatric evidence called at the trial was called from Mr Carter and it was called mainly from the defence.  Again, my learned friend says, with regard to the forensic decision, that a decision was not made to call a psychiatrist.

A decision was not made to call a psychiatrist because the state of psychiatry in 1984 was that the psychiatrist would not have been able to add the type of further insight that the new evidence – which is now available in 2023 – was able to give.  So, not only should a forensic decision be allowed to be departed from, but that explains the forensic decision, because, on the basis of knowledge at that time, those psychiatrists would not say anything useful, and they were left with Mr Carter’s evidence as to how affected by his mental illness he was.

In that regard, for example – this is just an example – he could not remember most of his delusions.  Now, it was part of his condition that he had the delusions; it was part of his condition that he did not lay met down memories with regard to that, and this an example of his cognition problems.  But he could not give evidence with regard to the severity of his disease, even in the absence of the new psychiatric evidence, and a psychiatrist could not be called to assist that.  So, in those circumstances, it is extraordinarily compelling that this evidence is now available.

We just wanted to say something about the provisions with regard to the phrase relevant in the context of the issues at the trial, or:

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

I forget what the section actually says.  Our learned friends sought to say, because these issues were litigated at the trial, therefore, it is not probative in the context of the issues at the trial.  Now there will be – another part of what Keogh and Van Beelen say is there may be issues – because the issue at the trial, ultimately, is guilt or innocence, there may be some matters that were not run at trial that are now available.  That is why it is important that the section is phrased:

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

Your Honour, if you just allow for me to talk about a pathology matter, as a sheer hypothetical ‑ ‑ ‑

GAGELER ACJ:   Why do we need to go into that hypothetical?

MR KEIM:   We do not, but what I am saying is two things.  One is you can have issues are relevant “in the context of the issues . . . at the trial” – matters that – even though they were not touched at the trial.  But the obverse of that is that where issues were very, very important in the trial – like how reliable is Mr Carter – then the phrase picks that up – the fact that they were litigated at the trial makes them more relevant and more probative “in the context of the issues of the trial”.

We say that the paragraphs of Keogh that our learned friend took your Honours to – 107, 109 and 112 – the thrust of those is that “in the

context of the issues . . . at the trial” is an expansionary phrase, is a liberating phrase, is a permissive phrase as opposed to if it was worded in the context of the issues of the trial, which could be more limiting.

With regard to the propensity evidence, in our reply at paragraphs 11 to 14 we set out why it would not be amissible at the trial, because no question of coincidence arises, because a person with the same propensity was shown to be at the scene of the crime, namely Mr Karpany.

Your Honours, that is the end of our reply, thank you very much.

GAGELER ACJ:   Yes, thank you.  Mr Hinton, you were to give us a piece of paper with some references to psychiatric evidence, you can do that today, can you not?

MR HINTON:   Could we have until the close of business?  We are travelling light; we are not sure we have the technological ability.  We will do our best, but if not, is close of business tomorrow possible?

GAGELER ACJ:   Yes.

MR HINTON:   Thank you, your Honour.

GAGELER ACJ:   And you will need to have an opportunity to add to that list, if you wish ‑ ‑ ‑

MR KEIM:   Yes, your Honour, thank you.

GAGELER ACJ:   And when can you do that by?

MR KEIM:   We will be able to do that by close of business Monday, your Honour.

GAGELER ACJ:   Thank you.

MR KEIM:   I did not think it was anything more than ‑ ‑ ‑ 

MR HINTON:   It is just numbers.

MR KEIM:   Yes.  I did not think it was adversarial or advocacy based ‑ ‑ ‑

GAGELER ACJ:   No, but you may wish to supplement it and you should have that opportunity.

MR KEIM:   Yes.

GAGELER ACJ:   Very well.  The Court will reserve its decision in this matter and will adjourn until 9.30 am tomorrow.

AT 11.33 AM THE MATTER WAS ADJOURNED