Bromley v The King

[2023] HCATrans 62

[2023] HCATrans 062

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 WEDNESDAY, 17 MAY 2023, AT 10.02 AM

Copyright in the High Court of Australia

MR S.J. KEIM, SC:   May it please the Court, I appear with my learned junior MR S.T. LANE, we appear for the applicant in this matter.  (instructed by Stanley Law)

MR M.G. HINTON, KC:   If the Court pleases, I appear with my learned friend MR W.M. SCOBIE for the respondent.  (instructed by Director of Public Prosecutions (SA))

GAGELER ACJ:   Thank you, Mr Hinton.  Mr Keim, before you begin, the parameters for this hearing are those set by the terms of the order for referral that was made on 16 September 2022.  The Court is of the opinion that certain paragraphs of your written submissions in‑chief go beyond those parameters.  The paragraphs in question are paragraphs 27 and paragraphs 60 to 73, all of which attempt to address the issue described as the “new pathological evidence”.  Those paragraphs will not be received.

MR KEIM:   Thank you, Acting Chief Justice.  Can I just say that we thought the relevance of them was ‑ ‑ ‑ 

GAGELER ACJ:   No, we have made our ruling, Mr Keim.

MR KEIM:   Yes.  Yes.  Thank you, your Honour.  Acting Chief Justice, we have provided the Court with some extra, extra materials, and the first that I would mention are a set of photographs which are numbered from 1 to 8, and these are the photographs that appear in volume 5 of the book of extra materials, at very end of the volume – in fact, I think they may appear on two occasions there, but if the Court goes to page 2021 of the book of additional materials ‑ ‑ ‑ 

GAGELER ACJ:   Can you give us the volume when you mention pages?

MR KEIM:   Yes, sorry your Honour.  It is volume 5, and it is page 2021, and we are indebted to the Crown for providing, I think, copies of some of original exhibits.  And so, they have been provided in a larger size than I think is otherwise available.  There are two other documents.

GAGELER ACJ:   I do not think they are a larger size.  They might be clearer.

MR KEIM:  I guess, I think they might be clearer.   I have reduced our volumes down smaller, so they are a larger size than that.  Yes, they are the clearest that the parties can make them.

GAGELER ACJ:   Do you want to take us to these now?

MR KEIM:   Not right away.  I just wanted to explain what the extra material is.

GAGELER ACJ:  Okay, thank you.

MR KEIM:   The other document is a map, a black and white map.  That is actually a copy of exhibit T1 in the trial ‑ ‑ ‑ 

GAGELER ACJ:   We have a colour map and a black and white map.

MR KEIM:   Yes, the colour map has been sourced by us and the library from a 1984 Refidex, or Gregory’s, and the P1 map covers largely the same area, but there is a little bit of extra area covered, and so it might be useful.  We are going to see if we can get that maybe photocopied in A3 size, which might assist the Court, during the morning, and we will hand up copies of that as well – that is the colour map.

GAGELER ACJ:   Very well.

MR KEIM:   That was the extra material except the extra, extra case, it is that of Domican v The Queen, and I am only going to that for quite orthodox principles.  But that has been provided to the Court this morning as well, I think.  There were the preliminary matters that I wanted to deal with.

Both the Crown and the Court of Appeal in its reasons placed a great deal of weight on matters we say corroborate Carter’s evidence at the trial.  It is fair to say both in the case of the Crown in paragraphs 15 to 29 of their written submissions and the Court of Appeal, this evidence is looked at and relied upon at a degree of generality.  It is also the case that the applicant relies upon the assertion in our case that the corroborating evidence is not inculpatory of the applicant.  That may be disputed to a limited degree by the Crown.  The Crown seems to assert as a matter of law, almost, that it is irrelevant whether the corroborating evidence is inculpatory of the applicant or not.  We take that from paragraph 39 of the Crown’s written submissions.

Comparison at the generic level is obviously of assistance.  On the other hand, while no witness is expected to get every item correct, getting the detail moderately correct is also important when the court comes to assessing credibility and reliability.

GAGELER ACJ:   Mr Keim, can I just ask a preliminary question?

MR KEIM:   Yes, your Honour.

GAGELER ACJ:   We are concerned, at least initially, with the new psychiatric evidence.

MR KEIM:   Yes.

GAGELER ACJ:   Can we take it that the summary that is in the appendix to the Full Court’s reasons is a sufficient summary of that new evidence?

MR KEIM:   Yes, yes.

GAGELER ACJ:   Can we also accept the propositions drawn from the evidence so summarised by the Full Court at paragraph 38?

MR KEIM:   Yes, your Honour.

GAGELER ACJ:   Thank you.

MR KEIM:   Having said that, we did intend to take the Court to some of Dr Sugarman’s evidence and some of Dr Brereton’s evidence, including the reports.  So, in terms of looking at the evidence in a little bit of detail, we will take the Court to evidence going to events in the period immediately before Carter – witness Carter – went to the Torrens, to the events on the riverbank, and to the events after Carter left the riverbank.  We have dealt with some of this in our lengthy footnotes in our submissions, hopefully it will be a little bit more digestible this morning than having to read those lengthy footnotes.

STEWARD J:   Just before you move on, there was one aspect of paragraph 38 I wanted to draw to your attention, and that is at the end of paragraph 1, the Full Court states that:

Accounts given by persons suffering schizoaffective disorder may not be reliable absent independent corroboration.

It is my recollection that some of the experts were of the view that the account would be unreliable unless corroborated; that is, there may not be – may not reflect the strength of some of the – in particular, Professor Coyle says:

There is simply no way of knowing what he claimed to have seen did occur or whether it was a hallucination.

It seemed a bit stronger than a “may”.

MR KEIM:   I am indebted to your Honour for that assistance.  Your Honour refers to Professor Coyle.  What ‑ ‑ ‑

STEWARD J:   Just as an example of someone who is a bit stronger than “may”.

MR KEIM:   Yes, and we were going to take the Court to Dr Brereton and Dr Brereton’s evidence at the end of the day, but also in his report, is that a person suffering from a schizoaffective disorder is very likely to be unreliable and that person’s evidence would not be able to be relied upon unless it is corroborated in almost every respect.  So, it is falling just short of ad infinitum, I think, your Honour.

He gives, as an example, that, for example, Mr Carter might be correct with regard to the events taking place at a particular location, but you could not take from that – or maybe corroborated with regard to those matters, but you could not thereby rely upon his description as to who was involved in those events, or who was responsible for what, without that further corroboration.  Yes, my apologies to your Honour the Acting Chief Justice for not picking that up in my quick scan.

GAGELER ACJ:   You would qualify the last sentence of paragraph 38(1)?

MR KEIM:   Yes.

GAGELER ACJ:   Thank you.

GLEESON J:   Mr Keim.

MR KEIM:   Yes, your Honour.

GLEESON J:   I have a question that you might be able to address at some point, in relation to the second‑last sentence of paragraph 38, which deals with the reliability of a person suffering schizoaffective disorder.  When they are psychotic, there are a number of different points in time which there might be an issue of fact as to whether Mr Carter was psychotic; that might be at the time that he allegedly witnessed events, the times that he gave accounts of events to various people, as well as, at the time, police interviews.  Is it agreed that he was psychotic at all relevant times?

MR KEIM:   It is not agreed.  I am not sure what the Crown position is.  I think the Crown position may be that he was made worse, and his hospitalisation was necessitated, by the events that he witnessed or was involved in on the riverbank.  I can probably assist, at the moment, to this extent:  he was very ill for at least four weeks beforehand; and his rehabilitation took, I think, either three or four months; and Dr Sugarman’s evidence, which I will go to, does show – I think the last passage that I wanted to take from the hospital notes, to which Dr Sugarman refers, is dated, I think, 4 June.

It contains an account therein – and this goes a lot to the suggestibility point, but what is evident from that is that there are differences between his evidence in court and the account that he was giving as at 4 June,  One of the important differences, from our point of view, is that he has himself drinking in a pub, and it is when you are drinking in a pub that he meets the applicant.  So, all of that relatively corroborated and coherent evidence from when he and Karpany leave the house, including being picked up at the phone booth and stopping in Hawker Street, all of that is absent from his account, because he says he is drinking in the pub, as opposed to getting a taxi with Karpany to Jules Bar.

If I could just relate to the medical opinion, which, in this area, is – there is a lot of medical opinion about memory forming, about confabulation in memory forming, about what is called “memory consolidation”.  So, in terms of suggestibility, you have more detail, and more corroborated detail, becoming available the closer it comes to his final police statement.  But, during all of this period of time, he is very ill, as the hospital notes show, and also – this is, perhaps, a side issue.  One of, I think, the first of Mr Peglar’s attempts to get a statement from him is at a stage when Dr Barrett is saying he is too sick to go to court.  So, a lot of the discussions took place – I will come back to it; I will not go into that detail just now, but I hope that answers your Honour’s question to some degree.

I think I was talking about Mr George, the taxi driver, and we wanted to make the point – it is a global observation – that his evidence is, obviously, extremely important.  In one respect, his identification of the applicant as the “dapper” person in his taxi on the second attempt from photographic evidence is, really, we say, the only evidence that corroborates Carter, and is incriminatory of the applicant.  So, the only incriminatory aspect of Carter’s evidence that is corroborated comes from George’s photo identification at the second attempt.

The Crown say that they rely on a circumstantial case to support Carter’s evidence, which is Carter – no, sorry – the applicant being in the vicinity on the bridge.  They talk about marks on his clothing and things like that, but, we say, that is a very, very weak circumstantial case, and we will deal with that in detail.  But, in terms of actual evidence corroborating George’s photo identification, the second attempt is what we say is the only thing.

On the other hand, George’s description of his passenger, who he refers to as the “dapper” person, is something that would – if this was a simple appeal on the basis of unreasonable verdict, George’s evidence would make it unsafe in the light of the fresh psychiatric evidence to let the conviction stand.  It is obviously not that the issues are different but George’s description of the passenger, we say, is so strong and obviously reliable – and I will come to the detail of that – that the applicant was not the person who got into the taxi, therefore the applicant was not the person who was on the riverbank, the dapper person was, and therefore the applicant did not take part in these – did not take part in whatever happened on the riverbank.  The applicant was not dressed in a pale suit that evening and, thereby, was not the dapper man who travelled in the cab and who accompanied Karpany and the deceased to the riverbank.

So that is the importance of George’s evidence.  So, we will start with his evidence.  We wanted to take the Court to volume 1, page 420 of the book of further materials.

STEWARD J:   Did you say 220?

MR KEIM:   Page 420, your Honour.

STEWARD J:   Page 420.  I beg your pardon.

MR KEIM:   So, the element that this relates to, which we say George’s evidence differs from that of Carter, and in the light of the new psychiatric evidence, George’s evidence should be taken to show that Carter is unreliable on this issue.  So, at about point 6 on the page, the Crown asks the question:

Did you drive into Hindley Street.

I would ask your Honours to go down to the bottom of the page and the point about this is – and if your Honours just look at the coloured map.  If your Honours can see Hindley Street, which is perhaps running – well, is running east‑west about point 3 down the page ‑ ‑ ‑

GAGELER ACJ:   We now have A3 versions of the coloured map.

MR KEIM:   You do have A3 versions; so do my learned friends.  So can your Honours see Hindley Street, which is the black and white street under the yellow North Terrace?

GAGELER ACJ:   It runs into Rundle Mall.

MR KEIM:   Yes, it does.  It runs in the light – sorry, Hindley Street, yes.  So, Mr George has the taxi coming from the King William Street end, and the significance of that is that Jules Bar, where he stopped, is about three‑quarters of the way between King William Street and Morphett Street, and he has himself stopping the taxi opposite Jules Bar.  So, Jules Bar is to the north of Hindley Street, about three‑quarters of the way along.

The difference is that Mr Carter has the taxi turning right into Hindley Street – presumably from Morphett Street or Montefiore Road, depending on what it is called at the time – turning right towards King William Street, doing a U‑turn and then coming back and stopping outside Jules.  That can be seen in the evidence at volume 1, page 436.

EDELMAN J:   Can you just locate the bar on Hindley Street?  Which side street is it closest to?

MR KEIM:   I am told it is the corner of Victoria Street and ‑ ‑ ‑

GAGELER ACJ:   Victoria Street and Hindley Street, is it not?

MR KEIM:   Yes, yes, your Honour.

GAGELER ACJ:   This coloured map shows some theatres there, on either side of the street.

MR KEIM:   Yes, it does but I think it is on the other side from the theatre that is on the north – where the “V” of Victoria Street is, your Honours – I am indebted to my learned friend.  Can your Honours see that?

GAGELER ACJ:   Yes, opposite what is shown as the theatre.

MR KEIM:   Yes.  If I can get your Honours now to go to page 436 ‑ ‑ ‑

GAGELER ACJ:   I am sorry, what were we to take from page 420?

MR KEIM:   That, according to Mr George, the taxi came from William Street, did not do a U‑turn, just drove down to opposite Jules Bar, and stopped ‑ ‑ ‑

GLEESON J:   So, it turned left into Hindley Street.

MR KEIM:   I think that it is turning right into Hindley Street – if he has come from the north and perhaps come over the King William Street bridge.

GLEESON J:   I see.

MR KEIM:   Yes.  That is just spelt out in a little bit more detail at pages 436 to 437.  About six questions from the end:

You’re absolutely sure you drove up King William Street and then turned right into Hindley Street.

. . . 

Then travelled in a westerly –

over the next page, the answer, about five lines down:

No, I did not.

That is also Mr George’s evidence.

EDELMAN J:   Which page are you reading from now?

MR KEIM:   Starting at page 436, your Honour, and going over to page 437, five lines down from the top.  With the answer:

No, I did not.

Mr Carter’s evidence is page 260, still in volume 1.

GLEESON J:   Sorry, what page?

MR KEIM:   Page 260, your Honour.  This is in cross-examination, and it is the second question at the top of page 260, the question about the Overway Hotel:

Did the taxi come over the Morphett Street bridge –

as opposed to the King William Street bridge, did it:

turn left at the Overway Hotel and into Hindley Street.

And then:

it drove up Hindley Street away–

That is to the east, on our maps:

Towards Jules Bar.

GLEESON J:   I am sorry, Mr Keim, I am not following you.  What page are you on?

MR KEIM:   I am on page 260.

GLEESON J:   Yes.

MR KEIM:   There is a question about halfway down the page after he says that it has turned left at the Overway Hotel, that is towards King William Street.  And:

Then it drove up Hindley Street away from the Overway Hotel –

That is:

towards King William Street.

That is:

Towards Jules Bar –

And beyond.  Because the answer is:

A.Towards the end of the street.

Q.Or coming towards King William Street.

A.Yes.

Q.Did the taxi man do a U turn.

A.Yes.

Q.Did he do a U turn out the front of Jules.

A.No, bit further down where the stop lights are.

Q.That is just going past Jules.

A.Yes.

Q.Towards King William Street.

A.Yes.

Q.Did a U turn and came back . . .

. . .

Q.You agree with all of that.

The point is that Mr Carter tends to get key aspects of the detail wrong, and that can be shown by his difference with regard to Mr George on this matter.  That is what I wanted to say about that particular issue.  Coming to some more of Mr George’s evidence, can I just say that at page 417, your Honours do not have to go to that, but at page 417 you can see that Mr George describes Carter as the:

tall lad –

He is the taller person among his customers.

EDELMAN J:   Sorry, just before you move on.

MR KEIM:   Yes, your Honour.

EDELMAN J:   The passages you took us to which concern, as I understand your submission, the errors by Mr Carter in the travel of the taxi.

MR KEIM:   Yes.

EDELMAN J:   They are passages in cross-examination.  Was there the same evidence that was given in examination in‑chief?

MR KEIM:   I do not think the Crown went to it, your Honour.

EDELMAN J:   I see.

GLEESON J:   Is this evidence at 216 affected by the expert evidence about suggestibility?

MR KEIM:   It is related to the evidence about suggestibility.  Part of what Dr Sugarman says, and Dr Sugarman sets out three pages of responses where Mr Carter says, “I don’t know” with regard to little bits of detail, which perhaps an ordinary person might get some of them wrong, or might not be aware of them, but it is a large number.

I suppose the proposition is that, even with having created some memories from taking prompts, either from the hospital staff or the police officers, he has been able to fill in gaps, but where he has not been able to fill in the gap or has not been able to fill in the gap fully, there are still things that he gets massively wrong.  They are related, your Honour, but not exactly the same thing.  Does that assist?  Thank you.  Did I answer your Honour Justice Edelman’s question sufficiently?  Sorry, have I answered your question?

EDELMAN J:   Please keep going.

MR KEIM:   Yes, thank you.  So, it is at page 421, we are still in volume 1.  This is not an issue with regard to discrepancy between what Carter says and what George says.  This is an improbability with regard to Carter’s evidence as a whole because of this particular behaviour that is described.  And essentially, the evidence is that Mr Carter goes across to the dapper person who, on the Crown case, is the applicant, and he gives him a big hug.  Your Honours can see this at page 421, about halfway down the page.  The question is:

They both got out of the taxi and went across to Jules.

And:

They greeted the aboriginal person.  I think one of them – the tall one, that’s right – put his arms around him, what-have-you, you know – 

The question is:

A close greeting.

And the answer is yes.  So that is the passage and the evidence with regard of the extent to which Carter knew Bromley is that he had met him once, three years earlier, in 1981, at Victoria Square.  And the second time he met him was that night.  So, our proposition is that it is odd behaviour for Mr Carter to greet so effusively someone who was not only not dressed like the applicant but, if it was the applicant, it was someone that he had only met once before in his life, and that was three years earlier.

His evidence as to when he met him is contained at pages 196 to 197.  You have to go back, but in volume 1 still.

GAGELER ACJ:   Mr Keim, I am trying to map this onto your outline of oral submissions.  As I understood it, we dealt with the first point in your paragraph 1.a, the direction to the taxi.  Is this point picked up with the references in your outline somewhere?

MR KEIM:   Yes, they are, your Honour.

GAGELER ACJ:   I just do not see it.

MR KEIM:   No.  It is not included there.  We were struggling a little bit with space and struggling a little bit with time.

GAGELER ACJ:   I am not being critical.  I am just trying to follow it.  Is this an extra point?

MR KEIM:   It is an extra point that is not mentioned there, but the references should be there.

GAGELER ACJ:   And the point is simply what?  The oddity of a greeting of this nature?

MR KEIM:   Yes.   Yes.  And the evidence is at pages – I said page 196 to 197.  The part of 197 is just the first – sorry, the very last question and answer; a more substantial amount is in the first 10 lines, finishing with the answer:

I’m not quite sure.

STEWARD J:   What page was that on, sorry?

MR KEIM:   Sorry, your Honour?

STEWARD J:   What page was that?

MR KEIM:   Page 197, your Honour:

Q.When did you first meet him.

A.In 1981 in Victoria Square.

And, going down to:

A.I’m not quite sure.

Now, I think it is common ground that the applicant was in gaol in 1981.  So, the detail of that answer could not be right, but we rely on the substance of the answer as well.  He, obviously, had only met him once, whenever it was.  We say that, because he was very close to Mr Karpany, he probably had heard of the applicant, and, just thinking of a fairly closed Aboriginal community in Adelaide in 1984, he may well have seen the applicant on various occasions, but he says he only met him once – and yet he throws his arms around him.  There is a further passage in cross-examination ‑ ‑ ‑

STEWARD J:   Sorry, Mr Keim, where does it say it was only once?

MR KEIM:   That is what I am going to take you to now, your Honour.

STEWARD J:   Okay, thank you.

MR KEIM:   Yes.  Page 241.  I think it is actually some questions by the judge – the learned trial judge.  Just testing my junior, your Honour.  Page 286.  I was lost and floundering.  Yes, page 286.  It is in “cross-examination by Mr Borick”, who was acting for the applicant.  I still think there is another page I have to find – but looking at that page, on page 286 – down to the bottom of the page: 

Q.Where did you first meet Mr Bromley.

A.1981 in the Square.

Q.At Victoria Square.

A.Yes.

Q.What part of the Square – outside this building or down by the Town Hall.

Et cetera, et cetera.  About five lines at the bottom of the page: 

Q.How do you know it was in 1981.

A.Because I said that in my statement.

Q.Why did you say in your statement you met him in 1981.

A.Because that’s how far I could go back and see remember who Derek was.

The passage that I said I would find the reference to has this and, and I said, it is questioning why his Honour the judge questioned:

Q.What is being suggested to you is that you never had anything to do with Mr Bromley at all, ever.

A.Yes, I did in 1981.

Q.What about in April 1984.

A.Yes, I met him then too.

XXN

Q.You say that was the second time, do you.

I will find that reference and give it to your Honours, but that is the material that we rely on, your Honour Justice Steward, with regard that there was the only – the single meeting.  I am getting help from both sides, your Honour.  Yes, it is page 290 and I suppose the run‑up is at the bottom of page 289 where he is responding to a proposition being put to him that he had never met Mr Bromley and then his Honour assists and asks those questions which I just read out to your Honours.  So that is the point of the effusive greeting of a person that I had only met once in my life.

Another matter on which George and Carter differed was whether the dapper man was drunk.  Carter says that the applicant was “the drunkest” of the four people.  That is at page 301 to 302.  So, it is starting at the bottom of the page, five lines up from the bottom of the page on page 301:

Q.Stephen was pretty drunk.

That is the deceased:

Q.What about the other two.

A.Derek was really drunk . . .

Q.You say Derek was the drunkest of the lot.

A.Yes.

Q.How was he behaving –

And about six lines down on page 302:

A.Staggering around; couldn’t walk straight.

Q.What about his speech, the way he was talking.

A.He was talking all right, slurry.

But the two police officers who observed and discovered and spoke to the applicant – that is Griggs and Burden – they perceived the applicant as being quite sober.  The timing might be of assistance here.  I may have a reference to each of these later, but Mr George’s evidence was that he dropped the four people in his taxi outside the Suburban Taxis depot – I will come to that in a moment – at about 3.30.  I think he says plus or minus five minutes.

Constable Griggs says that he first saw the applicant, in photo 1, when he was walking across the bridge at 4.25 am.  But Moyle, the railway police officer, he says he saw the police officers using a spotlight on the bottom part of Festival Drive across the railway yards at about 10 to 4 or five to 4.  So, we do not have a definite time, but we know that the earliest he was spotted by the police officers was 10 to 4, the latest was 25 past 4, and so we are talking about a person who was staggering around at 3.30 being quite sober, at the latest, at 4.25.

In Griggs’ evidence on this – sorry, I will start with Burden’s evidence, at page 403.  So, Constable Burden is a female officer.  She is also referred to as Constable Wilkinson because, I think, Burden was her married name, which she had only acquired recently.  At page 403 – now, we will come back to this passage because it is relevant to a clothing question, but about 12 lines down:

Would you describe his dress as being that of a dapper man.

Burden says:

Definitely not.

Then the next line is:

Q.He was not affeGted by liquor.

A.Not that I could detect.

Then the next three or four questions, finishing with the answer:

It comes with the job, yes.

Then Griggs – I will have to ask your Honours to pick up volume 2 and go to page 514.

JAGOT J:   Page 514?

MR KEIM:   Page 514.  Yes, your Honour.

JAGOT J:   Yes.

MR KEIM:   Now, I can help with one of the times.  About a third of the way down the page, there is a question of Griggs:

Q.About what time would it have been when you first saw Bromley on the bridge.

A.Was around 4.25.

But the evidence with regard to the alcohol is about 10 lines up from the bottom of the page, starting with the question:

Q.Whilst you were speaking to Bromley did you form any opinion as to whether he had been drinking or not.

A.There was a very slight smell of alcohol on his breath which in my opinion was only similar to that of having one or two drinks –

In fact, the other Aboriginal man is, on the Crown case, Carter, and that can be inferred quite readily.  Mr Carter was affected by alcohol in Griggs’ judgment.  Not a lot comes from that except it probably goes to all of these memory issues that he was – when he witnessed these events, he may have been affected by alcohol as well as all the other problems he had.

GAGELER ACJ:   Is there any suggestion in the evidence that the alcohol may have affected the form of the greeting that you took us to before?

MR KEIM:   No, your Honour, that is the only reference with regard to that.  The two things have not been related.

EDELMAN J:   Is there any reference in the expert evidence to the effect of alcohol on schizoaffective disorders?

MR KEIM:   No, as far as I can recall, it is not an issue that is discussed by the experts.  So, I do not want to make very much of it at all, but it is just interesting that he has described one person as drunk and yet he himself may have been affected by alcohol.

GLEESON J:   Was there evidence about whether Mr Carter was suffering from some form of mood disorder, like mania, at the relevant times?

MR KEIM:   Yes, your Honour.  The schizoaffective disorders includes as one of its symptoms – or “presentations”, or however one might describe it – hypomania.  Now, I naturally thought hypomania was depression; not being able to get out of bed.  But there is – one of the doctors explains, I think, in the oral evidence, that hypomania is a little bit down from the absolute top of hypomania.  So, yes, part of the schizoaffective disorder is mania.  There is evidence from lay witnesses saying he used to move around a lot, and it was hard to listen to him, and when he was trying to tell you something he was jumping and moving around.  So, yes, it is the effect of the expert evidence that part of his condition was manic behaviour.

GLEESON J:   Throughout the time that he was said to have seen the murder, and at the times that he was giving evidence or giving accounts of what he had seen?

MR KEIM:   It is not discussed in a detail, but what Dr Sugarman does in the passages – to which I want to take the Court – what he says is, he really emphasises how he remained very ill – and goes to different aspects of the hospital notes – for months after these incidents, as well as having been affected beforehand.  I am not sure that the evidence answers your Honour with absolute specificity, but the next morning, in some of the esoteric evidence on which the Court of Appeal relied to a limited extent, one of the witnesses says he was moving around all the time.  There is also ‑ ‑ ‑

EDELMAN J:   I think, related to what Justice Gleeson is asking you, I think I would be quite assisted, when the time comes, when you take us to any of the aspects of the expert evidence, if you could point us to where it said as to whether or not hypomania is something that comes and goes, or whether it is, effectively, a permanent condition.

MR KEIM:   Yes.  I will take it on board, your Honour.  But I think the thrust of my answer is his condition was schizoaffective disorder, and he was very ill with that disorder from four weeks before these events until months after.

EDELMAN J:   No, I understand that.  But, I think, you were going to take us to the aspects of the expert evidence that say that one part of the schizoaffective disorder is hypomania, and my query is whether hypomania is something that is permanent or whether it is transient.

MR KEIM:   Yes, yes.  Just on mood disorder, an aspect of that – of your Honour Justice Gleeson’s question.  There is a comment by Dr Sugarman with regard to one of the quite earlier nursing notes saying, he was quite happy.  Dr Sugarman says that that was an inappropriate mood for somebody who had just claimed to have witnessed a murder quite recently.  I will move on.  Griggs’ evidence, with regard to the applicant’s state of sobriety, is at page 514.  Sorry, it is Constable Griggs’ evidence at page 154.  It is at the bottom of that page.  It starts with the question:

Whilst you were speaking to Bromley, did you form –

and I have taken your Honours to that passage, so I will move on.

GAGELER ACJ:   Mr Keim, this part of your argument is directed to showing that aspects of Carter’s evidence were objectively unreliable.  Is that right?  Is that what we are doing here?  Or are we doing a number of things?

MR KEIM:   We are doing a number of things, but that is the thrust.  It is convenient to a couple of other things as we go along, but – yes.  He is unreliable here because he wrongly recalls that the applicant was very drunk, when, in fact, there is objective evidence that he was not.  I just wanted to draw two things from that.  If, in fact – and that was not something that George – if I can put it this way, if Carter was not wrong on that, then that is further evidence that the applicant did not get into the taxi.

EDELMAN J:   In other words, that it was a different person.

MR KEIM:   A different person, yes.  That is the other point I wanted to make about that, Acting Chief Justice.

EDELMAN J:   So, he is either wrong or he has identified the wrong person.

MR KEIM:   Yes.  And I do not think there is any evidence from Mr George with regard to that, but it is another reason why the applicant was not down on the riverbank that morning.  Now, I am going back to the journey down Hindley Street.  There is quite a marked discrepancy between what happened after the stop at Jules Bar.

George has the taxi stopping at Kats Bar, Carter going in and buying what was almost certainly a flagon of wine, and the taxi proceeding further west and stopping outside the Suburban Taxis depot, where the dapper person paid the fare, and then, with the four occupants, at about 3.30 am, walking off down Hindley Street towards West Terrace.  I can take your Honours to a number of passages that reflect what I have just said.  The first passage is in volume 1, at page 426.  Starting down the bottom – the first question and answer up from the bottom – this is Mr George’s evidence:

You went down Hindley Street, and did you eventually stop somewhere.

. . . Kats Bar –

That is spelt K-a-t-s, as is made clear.  On the black and white map – your Honours will see the reference to P1, that is the black and white map.  The witness says, about a third the way down the page – sorry, the witness indicates a spot on the map:

A.Possibly around there.             WITNESS INDICATES.

Q.You are indicating somewhere on the northern side of Hindley Street.

A.That is correct.

Q.On the western side of Fenn Place.

A.Somewhere around there –

Unfortunately, we do not have a copy with the cross on it, but can your Honours see Fenn Place?  There is Register Street; to the left of that, to the west of that, is Fenn Place.  I think it is on the western corner of Hindley Street and Fenn Place that was indicated.  That is Mr George’s version of where they stopped.  Then the reference to the suburban – sorry, still at Kats Bar, the purchase of the flagon, is the passage that starts at the bottom of page 427 and goes over to the next page.  The question is:

Q.Anyone get out of the taxi.

A.Yes, the gentleman in the front, and in fact I think the three of them got out of the taxi . . .

. . .

Q.Did anyone disappear –

And you can see the answer right at the bottom of the page:

A.The tall one.

That is Mr Carter:

Q.Was he the only one that appeared to go inside the premises.

A.Yes, I think so.

Q.Did you see him come back out.

A.Yes . . .

Q.Was he carrying anything.

A.Yes, a brown paper bag, which I assumed and which was in the shape of a flagon.

Q.Did they get back in the taxi.

A.That is right.

So, there is a continuity there.  If we go over to the next page, about five questions down, probably about point 2 on the page, the question is:

A.By the time he said ‘I want to go to the parklands’ I was pretty well opposite the front of Suburban Taxis, I stopped there then and I said ‘No this is as far as we go –

There is a fairly amusing bit a couple of questions down, where Mr Carter offers a cassette, and Mr George says:

‘I can’t eat a cassette –

then there is some discussion about the payment of the fare.  Can your Honours see, about a third of the page from the bottom, Mr George says:

I think it was $8 something –

The effect of the evidence is it was either $8 and he gave $12 change, or it was $12 and he gave $8 change, and he says:

the dollars is near enough.

Then, at the bottom of the page:

they all got out of the taxi and headed towards the northern side of Hindley Street –

So that is towards the top of the page:

a little further west of Suburbans.

And the question is:

Is Suburbans depot a little west of Grey Street.

And Grey Street, your Honours can see, is the last street at the west of that map.  But if you go to a colour map, you can see that there is another block another 100 metres or so between Grey Street and West Terrace.  And where Suburban Taxis – well, it is a little west of Grey Street according to the evidence.  So, somewhere under the bowl of City Bowl.  Sorry, somewhere under the “St” of “Rose Street” there, near where City Bowl is indicated.  There may even be a more precise indicator of that in a moment. 

So, that is Mr George’s evidence on a number of small factual issues.  Mr Carter’s evidence is very different.  So, after the U-turn and after the stop at Jules Bar, the taxi drives in the same direction as Mr George has indicated, west along Hindley Street to Martinas Bar, and this can be seen at page 204 of volume 1.  So, he has a different bar at a different locality. 

GAGELER ACJ:   In the same street, though?

MR KEIM:   In the same street, yes, your Honour.  So, at the top of page 204:

We walked down and we all got in the taxi and went down to Martinas.

And then, halfway down the page:

Q.You stopped somewhere near Martinas.

A.That’s right.

Q.Where is Martinas.

And again, it is exhibit P1 that we need for this.  If your Honours can see, just to the east of Register Street, the words Town House Motel, and the evidence is:

Q.       You are indicating a spot on the northern side of Hindley Street under the letter ‘01’ of ‘Motel’ –

I think that is “OT” of “Motel”.  So, halfway between Register Street and the earlier street.  And you can see that it is a block away from Fenn Street.  Then, in terms of purchasing the alcohol, Carter says he was unsuccessful in buying a flagon.  The questions start under the heading, “SHOWN TO JURY” at the bottom of 204, but the answer that he was not able to buy it is the first six or so lines of the top of page 205.

The two witnesses agreed that it was the dapper person who paid the taxi fare.  Carter had an amount of $10, and he says he was not able to buy the flagon.  And at page 400 – sorry, at page – and the significant thing in the evidence is that it is at Martinas Bar, according to Carter, that they all get out, and then they take a different route to the river area.  If your Honours can see just west of Town House Motel is Register Street, and that is the route that Carter has them taking, as opposed to walking beyond Gray Street towards West Terrace.  Register Street, the taxi leaving as at page 205 – the page that we were on – just under the middle of the page:

What happened after the taxi had gone –

So, all of that indicates the taxi was abandoned there by the group.  And then at page 260:

JAGOT J:   Page 6 or 60?

MR KEIM:   Page 260.  Sorry, your Honour.

JAGOT J:   Page 260.  Thank you.

MR KEIM:   Yes.  That is not the right reference.  I am sorry.  No, it is actually still on page 205.  So, it is just after the payment of: 

Q.What happened after the taxi had gone . . .

A.Then we went down to Register Street, across North Terrace and down across the railway yards and down to the Torrens.

And so on.  So, we say these are quite significant differences with George’s recollection.  They involve the sort of detail that a suggestible person, as described by Dr Sugarman, might believe strongly, notwithstanding that those memories had been formed by Carter in the process of memory consolidation, or confabulation.  The other point that we make, just in terms of who is likely to be accurate, the passage I think I took your Honours to at page 459 ‑ ‑ ‑

EDELMAN J:   Sorry, just before you move on.  What is the error or confabulation that you are referring to in relation to – is it in relation to Register Street?

MR KEIM:   Yes.  Well, all of those factual matters:  stopping at Martinas, and not Kats, in that wrong road block; agreeing that he went back in to buy a flagon, but not remembering that he bought one.  Everybody abandoning the taxi at that point and going down Register Street when you can probably infer from George’s observations that the group probably travelled all the way to West Terrace before they turned North.

GAGELER ACJ:   Is the difference about a couple of hundred metres?  How great is the discrepancy?

MR KEIM:   I would say that that is almost exactly right, your Honour.  Between the places where they stopped it is probably only about 50 metres, but between Register Street and West Terrace, or Register Street and Suburban Taxis, that is closer to 200 metres.  Does that assist, your Honour?

GAGELER ACJ:   Yes.

MR KEIM:   We will get our homemade scale for the map at some stage.  But the point we wanted to make was that George’s evidence is likely to be something that he remembered because he was concerned about being paid and he actually decided that stopping outside his taxi depot was a good policy in those circumstances.

STEWARD J:   Was Mr Carter asked any questions about his state of inebriation on that night?  I mean, you have shown us the evidence about how one of the policemen thought Carter was affected, but was he examined about that?

MR KEIM:   I will have that checked, your Honour.

STEWARD J:   Thank you for that.  All right.

MR KEIM:   Yes, I am not sure, he may have been asked some questions in cross‑examination.

EDELMAN J:   Is there any place in your outline or in your submissions where you collect all of the matters that you say are confabulations or errors in Mr Carter’s evidence?

MR KEIM:   We do not, your Honour, we do not.  We could probably construct that, maybe over the lunch break we will try.  We have limited the detailed analysis to the area involving us, if I can put it that way, so – from entering into King William Street shortly before Jules Bar ‑ ‑ ‑

EDELMAN J:   Well, I mean some of the details may just simply be the sort of discrepancies or errors you would expect with any witness giving evidence as to precise routes and precise locations.  Others may be more significant, but I think it is hard to tell at the moment how your submissions are constructed and which of the matters you are placing evidence on – placing emphasis on.

MR KEIM:   Yes, we say all of them are relevant, we say that some are more important than others, and we say the accumulation is important.

GAGELER ACJ:   We are still in paragraph 1.a of your submissions.

MR KEIM:   Yes, your Honour.

GAGELER ACJ:   Again, that is no criticism, I just wanted to know where we are.

MR KEIM:   Yes, your Honour.  The passage I wanted your Honours to look at is at page 459 in volume 1.

EDELMAN J:   But beyond the matters that particularly affect the applicant, there is – I mean, there is other matters that are obvious – hallucinations, creations, seeing the devil at a time and so on.

MR KEIM:   Yes, yes.

EDELMAN J:   Yes.  But you are not relying upon any of those.

MR KEIM:   No.  I mean, one of the things that Dr Sugarman says is important is that many of the grandiose things, which are evidenced by other people’s evidence – for example, at the beginning of the taxi journey he tells Mr George that he plays for Port Adelaide.  But he is cross‑examined with regard to a lot of delusions that are otherwise proved in the evidence, and he cannot remember those.

He says, no, you know, did you do this; did you believe this; did you say that?  And Dr Sugarman says that that is significant in terms of his memory formation and the fact that he cannot remember those things.  But the devil comes from him, I think, in most respects, and he was able to remember that.  I have the answer to somebody’s question, I think your Honour Justice Steward.  I think the passage may actually be just close to where he said that the applicant was staggering.  It is page 172 – sorry, it is page 217, your Honours.  Yes, it is that passage that we went to before, your Honours.  Halfway down the printed part of the page:

Q.Had you been drinking alcohol before you went down the river that night?

A.No.

STEWARD J:   Thank you.

GAGELER ACJ:   Mr Keim, we customarily take a morning adjournment at this stage.  How are we going for time in your submissions?

MR KEIM:   I thought that I would take the full four hours and I had written the outline of oral submissions so that it may not be necessary, for example, for me to take you to the passages in the cases because I think they are discussed – I will if I have time, but if I am running over time I will be able to do that, and I may – again, because I have the passages of evidence in, I may be able to shorten the references to the doctors’ evidence.  So, what am I at?  I am at one hour and a bit.

GAGELER ACJ:   We are still on paragraph 1.a, and we are not finished.

MR KEIM:   I know that, your Honour, but this evidence was always going to be the lengthiest part of it.

GAGELER ACJ:   Very well.  If you are comfortable with fitting it in, that is fine.

MR KEIM:   Yes.

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

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

MR KEIM:   Thank you, your Honour.  Your Honours, I wanted to take you to the passage at page 459 in volume 1 which starts under the word “Parklands”, about five lines down and finishes with the line, continuing line, “give us a hand”, so about a third of the page.  What we wanted to say about that is that you would certainly accept George’s evidence as to where the taxi finally stopped because he was concerned about being paid and he stopped at the taxi depot because he thought he would have support there if there was an incident.

Now, it is not one of the great aspects that Carter thought the fare was $10 and that George thought it was $12 or $8, but George’s description in the passage that I took your Honours to before that he either gave $8 of change or $12 of change, it is significant for another reason.

GLEESON J:   Mr Keim, can I just interrupt you.  At 459, am I misreading this, that Mr George gave evidence that he knew Mr Bromley personally?

MR KEIM:   From a long time ago, yes, yes, which is why we say – when we come to the vulnerability, or the photographic evidence, that he was almost a stranger.  I do not think it assisted in identifying him, and he has confined himself to the appearances of the photographs.  Now, we do not make anything of it one way or another, but it may have triggered him, but it was obviously a long time ago and there is no suggestion that he identified him as Mr Bromley in the taxi itself.

GLEESON J:   I see.

MR KEIM:   We will come back to that passage when we are discussing that photographic evidence.  Just going back to the importance of the change for another reason.  Part of the Crown’s circumstantial case against the applicant, as we understand it, relies on a suggestion that it was odd that the applicant told Griggs and Burden later in the night that he had been robbed but still had $60 in his wallet.

Now, we say, obviously, it is possible to be robbed where somebody grabs some money from your wallet or otherwise and throws things on the ground and just goes with what they can get very, very quickly in order to avoid being caught, but it was $60 in his wallet in the form of three twenties and, as we understand the Crown’s submissions, that was suggested to be odd and may have in some way not been a correct description of what he had been doing earlier.  However, on the Crown case, the applicant had received $8 or $12, and then had gone off to the parklands, murdered somebody, and then gone back up to Morphett Bridge, and where he is sighted by the police, and shortly thereafter, his wallet is searched.

The point that we make is that the fact there is three even twenties in his wallet is another reason why he was not the dapper person, because he would have had $68 or $72 or $48.  We would have something that either had an eight or a 12 in it, so that is an indicator – he had not gone anywhere to spend the money, we know, from the short amount of time available.  And, in fact, part of the Crown case is he is up on the bridge near where these events, so it is shortly thereafter.

So, we say it is an important factor that he paid the cab – or the dapper person paid the cab, was given $8 or $12, but the applicant, when he was questioned – and his wallet searched – did not have anything that included $8 or $12 – he had three even twenties.  So, we say that that is an important factor that counters – not only counters a circumstantial case, it very, very strongly indicates that he was not the person in the cab.

Now, as we foreshadowed at the beginning, the most important aspect of Mr George’s evidence is about the dapper person’s clothing.  He gave the description at page 424, point 8, towards the bottom of the page.  That is a very brief description.  It is under:

LAST THREE QUESTIONS AND ANSWERS READ BY REPORTER.

Q.What about the accused, Mr Bromley.

A.He was very smartly dressed –

And he describes in detail: 

light coloured suit, white tie, black shift –

shift is a typo – black shirt:

and a hat.  Unu ually – in fact, very well dressed.

So that is the first part of the description.  At pages 450 to 451, he was more expansive.  So above that – the passage starts two-thirds of the page down – above that is a description of what the deceased was wearing when he was in the cab.  So, there is the reference to a “white coloured” shirt, this is on page 450, two thirds of the way down the page – the question starts: 

Q.The most that you have come to identify that Bromley was wearing –

This is the dapper person:

is a white coloured suit –

A.That’s right.

Q.And a darkish blackish coloured shirt.

A.That’s right.

Q.And a white tie.

So those contrasts are quite significant:

A.A white tie, or a light coloured tie.

Q.The suit was well tailored.

A.Yes, certainly.

Q.What about the shoes.

He could not recall what the shoes were, but he got the impression they would have gone with everything else.  That takes one down to the bottom of the page.  On the next page, it goes all the way down to the mention of one or two‑days’ growth – not a beard in the sense of Mr Borick’s, which was the judge’s question.

So, the point we make is that it was a very, very, very clear description.  We will go to some evidence with regard to what the deceased was wearing in a moment.  George was pretty good with regard to that as well, so he had an eye for clothing, we say.  Sorry, there is just another line or two further down the page about the hat.  After his Honour’s questions about the beard – the question is:

Q.You wouldn’t describe number one as a beard of any sort, would you.

A.I would describe it as a growth of some description, yes.

Q.Going back to the hat, it did have a brim, didn’t it.

A.Yes, it was not wide.

Q.But the brim wasn’t turned up at all, was it.

A.I think it may have been turned up.

Q.You think that it may have been.

A.Yes.

Q.In what sense.

And Mr George says:

As I said, nobody wears hats – it was a modern hat and here I go again by saying it was a dapper type of a hat.  It wasn’t a wide brim sort of thing but it was very fashionable.

Now, the Crown sought at the trial – and we understand, in this application – to meet George’s evidence on this point by adducing evidence from the applicant’s sister‑in‑law, Margaret Bromley, that the applicant owned a hat, albeit a very different type of hat, which she described as an Andy Capp‑type, and Dr Google – I cannot remember the cartoons – but Dr Google tells us that an Andy Capp hat or a Sherlock Holmes hat – as he refers to it – is essentially a flat‑topped cap; a cheese plate, as some people refer to it.  So, it is very different to a brimmed hat of the kind.  It is also a different colour.

Still in volume 1, at page 470, is Margaret Bromley’s evidence with regard to this.  It is in the middle of page 470.  This is in the Crown’s questioning:

Q.When you were packing his clothing, did you find a hat of some sort.

A.Derek had a brown woollen – I think they call them Andy Capp hats, but I call them Sherlock Holmes hats.

Q.Made of what sort of material.

A.Like woollen, brown woollen type.

Q.Had you ever seen him wearing it.

A.No, I had not.

So that hardly meets Mr George’s description of the person who got into his taxi.  Then, just one the general description on the next page, in cross‑examination, there is a very clear set of answers by Mrs Bromley, that apart from the hat – which is described on that page as a “brown woollen type” hat that he’d never worn.  He did not have any other of the accoutrements which were described by Mr George as being worn by the person who the Crown says was the applicant that night.

If we turn back to the applicant’s dress on that night, Burden’s evidence on this point is at 387, still in volume 1.  Yes, towards the bottom of the page, about 10 or 12 lines up, the conversation is:

Q.When you had this conversation with Bromley, where was Constable Griggs.

A.He was standing near me.

Q.Do you remember how Bromley was dressed on that morning.

A.He had a light coloured shirt on and a pair of trousers and shoes.

Q.Do you remember what type of shoes.

A.No.

Then, the next page is about the stain on the shirt.  That was her evidence.  She is asked at pages 402 to 403 to comment on the description that George had given.  At the bottom of page 402, under the heading “cross‑examination by Mr Borick”, she describes the clothes as we have just seen.  At the top of the next page, he was not wearing a coat.  But the question about five lines down:

Q.Would you describe his dress as being scruffy.

A.Yes.

Q.Have you ever heard the expression, or word, ‘Dapper’.

A.Yes.

Q.Would you describe his dress as being that of a dapper man.

A.Definitely not.

Then we go back to the alcohol evidence that we have seen before.  Griggs’ description is at page 519, which puts us into volume 2.  Interestingly, the Crown’s case in their written submissions was that the applicant was dishevelled when spoke to the police officers.  If your Honours go to page 519, about 10 lines down, the question is:

When you spoke to him you observed his dress.  Would you agree that he was scruffily dressed.

Constable Griggs says:

I thought he was quite tidily dressed at the time.

Then there are some questions about the shirts and other things.  Certainly not wearing a hat with a brim.  The consensus of the police officer’s evidence is that he may have been scruffy, but dishevelled seems to be a bridge too far.

EDELMAN J:   Is that page 509?

MR KEIM:   Page 519, sorry, your Honour.

EDELMAN J:   Thank you.

MR KEIM:   It is 10 lines down.

EDELMAN J:   Yes, thank you.

MR KEIM:   Margaret Bromley also described what he wore that night, at page 464.  This evidence is important because it is actually more precise than the police officers’.  Do your Honours have page 464?  About two‑thirds, or just over halfway down the page, she was asked:

Q.       When you left him at Torrensville –

He went to the prisoners’ action group meeting at Torrensville and then went to town later:

Q.When you left him at Torrensville, can you recall what he was wearing.

A.Yes, he was wearing brown corduroy trousers, a checkered western style shirt which was thin, blue and white sneakers and my husband’s blue woolen jacket, a new ohe.

What is probably significant is that they went shopping earlier in the day.  And, for example – and they went shopping for clothes.  One of the things that were bought were the sneakers.  The jacket belonged to Trevor Bromley, Mrs Bromley’s husband.  So, he was not only not dressed in a dapper way, but he did not really have a wardrobe, I guess is the point that we are making.  He was never going to resemble the man that got into the taxi at that stage of his life.

We wanted to make a point which comes from the case law, and it is convenient to make it at this stage.  That is the changing of the evidentiary landscape.  If I can just give your Honours the reference to Keogh (No 2) where the passage appears, it is at paragraph 141.  I do not need the Court to go there at the moment; I just want to make the broad point.  Also, if one goes to the core appeal book – and I might ask your Honours to go to this.  It is at page 214 to 215.  This is in the reasons of the Court of Appeal.

GAGELER ACJ:   What paragraph?

MR KEIM:   Paragraph 341 to paragraph 344 on the next page.  There is a reference to his Honour’s directions with regard to identification in the first part of the extract in paragraph 341.  I just ask your Honours to note that so that we do not have to come back to it.  I will talk about photographic identification later.  But the point, on 215 – no, sorry, still on 214, there is a reference to the opportunity – in the second paragraph of the extract from his Honour’s judgment, about halfway through that paragraph:

It follows that you must carefully consider the opportunity that George had to see and remember the features –

including:

the state of the lighting in Hindley Street –

And then he goes on further to talk about identification.  Then there is a reference in the paragraph at the bottom of the page to the coincidence that there was a discussion about somebody who had got out of gaol in the taxi, which was indicating the dapper man.  Then there is a reference to Mr George’s evidence about the clothing in the first new paragraph at the top of page 215.  Then, paragraph 342 was regarded as important by the Court of Appeal, and we say it is important as well.  The jury were directed that:

[I]f you think George might be right, that the man who got into the taxi was wearing white shirt and white trousers, black shirt and tie and a hat with a brim, it must be a reasonable possibility that the man who got into the taxi was not Bromley.

And we probably put it a lot higher than that, but that is a very, very important aspect.  And then, the Court of Appeal accepts that, at paragraph 344:

The unanimous guilty verdict can only be explained on the basis that the jury found beyond reasonable doubt, on the basis of all the evidence, that the Aboriginal man with the deceased in Hindley Street . . . was Bromley, and that Mr George was mistaken concerning his description of Bromley’s manner of dress.

Which gets me to the point which I was going to try to express, which is ‑ ‑ ‑

GAGELER ACJ:   Can I just ask you; do you accept that?

MR KEIM:   Yes, we do.  But what we say is that the new psychiatric evidence which stresses that Carter’s evidence can only be accepted on those points on which it is corroborated, unless it is corroborated on almost everything, we say that changes the evidentiary landscape.  We say, in that context, that you cannot use Carter’s evidence here because it is not corroborated on the key points to throw out the evidence of George.  And we say, that is the basis, on its own, by which the new psychiatric evidence is compelling.  It is compelling because, in the face of that evidence, it is simply unsafe to reject Mr George’s evidence on the basis of the uncorroborated evidence of Mr Carter.

GAGELER ACJ:   You are talking here about the description of the man who got into the taxi?

GAGELER ACJ:   So, can we compare that with what the trial judge said?

MR KEIM:  The Court of Appeal said?

GAGELER ACJ:   No, the trial judge, in the summing up.

MR KEIM:   Yes, your Honours.  I can go to that.

STEWARD J:   I think it is at page 6 of the core appeal book, starting with the last paragraph.

MR KEIM:   Thank you.  Core appeal book, I have it here.

STEWARD J:   Commencing:

Whilst on the subject of witnesses, I want to say something about Gary Carter.

MR KEIM:  The phrase “scrutinise . . . with special care” that we are all familiar with spans the two pages, but it is for the jury to decide whether they are convinced of the accuracy.  And, again, that is a traditional warning direction.  It says that he was “mistaken”.  Then the trial judge sets out the Crown’s argument that:

Carter was supported by independent evidence to a substantial extent –

and, obviously, the matters that we went to this morning question how substantial that is, especially the key areas.  The file at the bottom of page 7:

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 –

So, there is actually no requirement for corroboration.  It just says that the Crown says that he is supported on some elements.  It is a subjective assessment by a jury, after giving it careful scrutiny, whether they are satisfied.  So, in answer to your Honour, the Acting Chief Justice’s question, we say that is quite a long way from what would be the appropriate direction in circumstances where the court had received a medical opinion in this matter.

I have given all of the citations of Dr Sugarman’s evidence.  I do not propose to go through that now.  With regard to the authorities, most of them are set out in some length in our written submissions.

GLEESON J:   Mr Keim, just looking at paragraph 23 of the Full Court’s reasons ‑ ‑ ‑

MR KEIM:   Paragraph 23?  Thank you, your Honours.

GLEESON J:   ‑ ‑ ‑ that shows that the High Court, back in 1986, looked at the particular direction in this case.  It seems to have assumed, wrongly, that Mr Carter suffered from schizophrenia as opposed to schizoaffective disorder, and then concluded on the basis of that and, no doubt, other evidence that the direction was sufficient to warn the jury of the possible danger of acting on Mr Carter’s evidence if it was not confirmed by other evidence.  That seems, to me, to raise a question about what it is about the new evidence that would mean that a different analysis from that that was undertaken by the High Court in 1986 should apply.

MR KEIM:   It is the fact that the new evidence would say, to the Court, it would be part of the evidence that this particular person’s evidence cannot be taken as reliable unless it is corroborated in almost every respect; and that, even where he is shown to be correct in some respects, you can not assume that, therefore, he is correct in another respect, even in a related respect.

An example that Dr Brereton gave was just because he was able to describe everything that happened on the riverbank, you could not extrapolate from that that, therefore, he got the persons involved – the persons responsible – correct.  It is very strong medical opinion, and it is a long way different, a long way removed from the almost – well, the absence of evidence, but just what was before the High Court in 1986 was:  this person suffered from schizophrenia.

It is an appropriate approach to say that if somebody is suffering from a severe mental illness, with nothing more, that you should scrutinise their evidence.  But once you know the details of that, and the impact of the cognition of those submissions, and on memory formation, objectively, this Court would have to say that a direction that fitted the evidence – fitted the medial evidence – should be given.  But, I suppose ‑ ‑ ‑

GLEESON J:   Has the – I am sorry to cut you ‑ ‑ ‑

MR KEIM:   ‑ ‑ ‑ in answer to your Honour’s question, we tend not to focus on the directions.  We say the directions will take care of themselves once the evidence is there.  What we are saying is the evidence, with regard to Mr Carter, is such – the new evidence is such that any trial judge would be required to give directions appropriate to that evidence.  It is not really an academic exercise at this stage.  It is just doing your job as a trial judge.

GLEESON J:   Am I correct to understand it in this way:  that you are not saying that the law has changed – that the law has changed or evolved to meet developing knowledge of psychiatric learning since 1986, but you are saying that the requirement that the warning appropriate to the circumstances of the case would have been different if this evidence had been ‑ ‑ ‑

MR KEIM:   Yes.  Yes, we are saying exactly that, your Honour.

STEWARD J:   There is a passage at core appeal book page 130, in the judgment of Justice Brennan in this matter, which may assist you, or may not, as the case may be.  I think it is the way you read it.  But what his Honour says is significant, nonetheless.  In the final paragraph in the quote, his Honour says – 130 of the core appeal book.

MR KEIM:   Is that paragraph 24, your Honour?

STEWARD J:   Yes, 24, and the last on the page:

There was no medical evidence as to the nature, severity and significance of Carter’s mental disorder, yet it seems that he suffered some delusions on the night of the crime and some of his evidence was clearly inaccurate.  In the absence of expert evidence, the jury might have given too much emphasis to his appearance in the witness‑box without having regard to the possible effect of his condition in his capacity to observe and recollect.

That sort of helps you, but his Honour then goes on to say, though:

But his Honour gave the jury a warning, directing their attention precisely to the danger of acting on Carter’s evidence where it was unsupported by other evidence.  No more was needed.  The credibility of Carter was the chief issue in the case and the jury could not have failed to consider whether it was safe to act on his evidence nor, once it was pointed out to them, could they have failed to appreciate the danger of placing too much reliance on the appearance of Carter in the witness box.

Now, I suppose on your case you might say, well, the difference between then and now is the better understanding of the medical evidence that might have affected how the jury might have comprehended his evidence.

MR KEIM:   Yes, which goes back to what Justice Gleeson was asking me.  We say that this medical opinion is admissible in a trial, so this Court does not have to rethink a general approach to directions on the basis of some general mental health condition, notwithstanding that if the court read about it, the court might think ‑ ‑ ‑

STEWARD J:   Your point is the direction at the time was perfectly all right, having regard to what was understood and having regard to the fact that there was no psychiatric expert evidence before the court.

MR KEIM:   It is the second point in particular that I say.

STEWARD J:   Yes.

MR KEIM:   There was nothing before the court to say that that was not sufficient.  Now there would be.

STEWARD J:   I see.

MR KEIM:   That takes us to just some of the case law that we wanted to – this is the important aspect of it, and the case of Rodi v Western Australia is amongst the authorities that were provided after the joint book of authorities were together, and this really a construction question of the phrase “in the interests of justice”.  The situation at common law is set out in Rodi’s Case in paragraph 28, and the Court says, starting – in fact, I need to look at the report so I am not misleading you – it is the second sentence, which is about four lines down.  This is the common law position with regard to appeals where there is fresh evidence:

It is settled that a miscarriage of justice will be established where fresh evidence, when viewed in combination with the evidence given at trial, shows there is a “significant possibility that the jury, acting reasonably, would have acquitted the accused” had the fresh evidence been before the jury.

And then, the last sentence:

That being so, a miscarriage of justice would be established if there were a significant possibility that the jury acting reasonably might have acquitted the appellant had that evidence been available to it.

That is all familiar language, but ‑ ‑ ‑

GAGELER ACJ:   Are you saying that that approach should be applied to the expression “interests of justice” in section 353A?

MR KEIM:   Yes.  Yes.  And we say ‑ ‑ ‑

GAGELER ACJ:   You may be setting a higher bar for yourself than has previously been brought.  I am not sure.

MR KEIM:   What I am saying is, that, in construing the section that uses the phrase “interests of justice” ‑ ‑ ‑

GAGELER ACJ:   I think we were back at the “compelling evidence” bit of the provision.  We have moved on now to the “interest of justice” provision?

MR KEIM:   Yes, yes, I have, because this relates to the reliance on the propensity evidence ‑ ‑ ‑

GAGELER ACJ:   I see.

MR KEIM:   The reliance on the propensity evidence and the reliance on some other bits of evidence which are said to exhibit esoteric knowledge, et cetera – although when you look closely at the Court of Appeal’s judgment with regard to that, they only rely upon the esoteric evidence – but what they say is there is esoteric evidence in about the same way as they will rely on the fact that the deceased’s boots were found in the water, it does not take it any further ‑ ‑ ‑

GAGELER ACJ:   It is a kind of corroboration.

MR KEIM:   Yes.  It is corroboration of a very general statement of what was happened on.  We do not dispute that events happened on the riverbank and the deceased ended up dead – that is clear.  What we are saying is that the Court of Appeal is wrong in receiving that extra evidence because in fresh evidence appeals, the Crown is not allowed to have a second go – the Crown is not allowed to take the evidence that it had all of the time and say, well, we could have made something with this, we will run this in the fresh evidence appeal.  So, the authority of Rodi should govern the construction of interests of justice here.  With Van Beelen – sorry ‑ ‑ ‑

GAGELER ACJ:   This was dealt with in Van Beelen.

MR KEIM:   Sorry?

GAGELER ACJ:   What “the interests of justice” means was dealt with in Van Beelen.

MR KEIM:   It is, your Honour.  But what the parties here say is – the Crown says Van Beelen left it open as to what the interests of justice might be.  There are some things that can be brought in.  We say that the Crown says, therefore it is open slather, and what they have really sought to do here is, we say, stuff that should never be allowed in, in the interests of justice because of the principles stated in Rodi.

The Crown’s evidence is not – is just not fresh evidence, and that was a result – the example that was given in Van Beelen’s Case ‑ and I think it is at paragraph 28 – the example that was given in Van Beelen’s Case was if there is a public confession on TV between the trial and now, that would be sufficient to not – not to grant permission for an appeal even though the evidence was compelling, because it is just – the compelling evidence is just wiped out by the public confession.

The Court’s example, we say, was meant to show that it would be very exceptional where it would not be in the interests of justice if the evidence was compelling, and we say that is how those issues should be dealt with.  Paragraph 30 it, actually is – I am sorry, paragraph 30, so at the top of page 578:

Commonly, where fresh evidence is compelling, the interests of justice will favour considering it on appeal.  Nonetheless, as the respondent submits, it is possible to envisage circumstances, such as where an applicant has made a public confession of guilt, where the interests of justice may not favour that course.  Contrary to the analysis of the majority, the circumstance that a conviction is –

We can ignore that.  But it is a very exceptional case where the interests of justice would not favour granting permission.  That is what we have – I mean, the High Court there is arguably giving an example, but we say what that example shows is that it is very exceptional circumstances where that would happen.  And here, if the Court was to endorse what the Court of Appeal has done in this case, with regard to allowing the Crown to bring in anything in their files that they have always had, and it adduced that there would be no limits, there would be no limits the Crown – there is no obligation on the Crown in that to show that their evidence is fresh, or that there was some reason why it was not adduced at the time, whatever.

It is just – this evidence was not worth running at first instance, but we will now put it out on a second trial application to try and convince the Court that it is not in the interest of justice.  In our submission, that would be an interpretation of the phrase in the interests of justice that just flies against the principles of double jeopardy, but flies against the principles that have been expressed in cases like Rodi down the years.

GAGELER ACJ:   I think that is 3.d, is it not?

MR KEIM:   Sorry?

GAGELER ACJ:   You are up to 3 – you have finished 3.d on your outline.

MR KEIM:   I think I had made the decision that I was not going to any other authorities.  Where is my outline?  Yes, your Honours, I think both our written submissions and the citations that we have given to the paragraphs there sufficiently indicate those aspects of the authorities that we particularly rely upon.

GAGELER ACJ:   Yes, of course.  Yes.

MR KEIM:   I know I have not taken the Court to as much detail, for example, of Dr Sugarman’s evidence, as the Court might have liked.  I am content, also, with regard to that, to rely on the citations that we have provided in the outline of oral submissions in that regard.  Can I just see if there is anything I have left?  And what we will do overnight is try and put together a tabular summary of the points of contradictions of Carter’s evidence – the things that Carter has got wrong – that we went over today.

GAGELER ACJ:   This is, in effect, the summary of what you have put already in submissions.

MR KEIM:   Yes.  Yes.

GAGELER ACJ:   Thank you.  That would be helpful.

EDELMAN J:   And you will provide that to the Crown?

MR KEIM:   Yes.  Definitely, we will, your Honour.  We will provide it to the Crown before morning, so that Mr Hinton has that to refer to, when he addresses.

GAGELER ACJ:   That completes your submissions in‑chief, Mr Keim?

MR KEIM:   It does, your Honour.

GAGELER ACJ:   Thank you.  Mr Hinton, how long do you expect to take tomorrow?

MR HINTON:   I would hope to still do it in the one and a half hours that I put down.  I plan to take your Honours immediately to the evidence, then straight to the judgment and work largely off the judgment in making the rebuttal case, as per the oral hand‑up, and it looks like after this morning’s ruling you can strike a line through paragraph 4, so I only now have three steps in the argument that I need to take your Honours through.

GAGELER ACJ:   Thank you.

MR HINTON:   I will be moving quickly.  So, allowing for injury time, I might get past an hour and a half, but otherwise I would hope to stick to the hour and a half.

GAGELER ACJ:   Yes, thank you.  The Court will adjourn to 9.30 am tomorrow for the pronouncement of orders, and otherwise to 9.45 am.

AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 18 MAY 2023