Bromley v The King - [2022] HCATrans 158

[2022] HCATrans 158

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
Application for special leave to appeal

KEANE J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 16 SEPTEMBER 2022, AT 11.27 AM

KEANE J: I will announce the appearances for the parties.

MR S.J. KEIM, SC appears with MR G.J. BARNS, SC and MR S.T. LANE for the applicant. (instructed by Stanley Law)

MR M.G. HINTON, KC appears with MR W.M. SCOBIE for the respondent. (instructed by the Director of Public Prosecutions (SA))

KEANE J: Yes, Mr Keim.

MR KEIM: Thank you, your Honour. On 14 March 1985, the applicant was convicted of murder ‑ ‑ ‑

KEANE J: Mr Keim, you need an extension of time.

MR KEIM: Sorry, your Honour.

KEANE J: Mr Hinton, is that extension opposed?

MR HINTON: No, it is not, your Honour.

KEANE J: You have got that extension, Mr Keim.

MR KEIM: Thank you, your Honour. The applicant remains in prison. We begin by noting that the application record contains nearly 2500 pages which distinguishes this application from many others where not only is the record much smaller, but the points of principle do not require consideration of extensive evidentiary material.

The result in respect of our written submissions is that the analysis has been rather densely squeezed into fifteen pages and many of the footnotes have been drafted with the objective of giving the Court a very focused guide to the evidence that is important. We will not seek to duplicate in our allotted time that kind of analysis but rather at somewhat higher level of generality set out what we say are several of the errors in the court below.

First, the Court of Appeal looked to corroboration on matters that were not incriminatory of the applicant but bolster the evidence of Mr Carter. They treated this corroboration as if it were corroboration on evidence that was incriminatory of the applicant.

This involved the same logical error identified by this Court in OKS v The Queen. It also failed to engage with the new psychiatric evidence which was that Mr Carter’s evidence was inherently unreliable. While his evidence could be correct – and could be treated as being correct where it was supported by other independent evidence – it needed to be treated as highly unlikely to be reliable in any circumstances where it was not supported by independent evidence.

This is most clearly articulated by Dr Brereton’s example that Mr Carter could be found on the basis of objective evidence to have correctly described the manner of an assault, but that would not allow a fact‑finder to conclude that his evidence as to who perpetuated the assault was also accurate.

Second, the Court of Appeal failed to pay attention to those…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] HCATrans 158
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, who had been convicted of murder in 1985 and remained in prison, sought to challenge the decision of the Court of Appeal of South Australia. The respondent was the Crown.

The legal issues before the High Court concerned alleged errors by the Court of Appeal in its assessment of evidence. Specifically, the applicant argued that the Court of Appeal had erred by treating evidence that bolstered the credibility of a key witness, Mr Carter, as if it were corroboration of incriminatory evidence. Further, it was argued that the Court of Appeal failed to adequately engage with new psychiatric evidence suggesting Mr Carter's testimony was inherently unreliable, and that it had overlooked inconsistencies in Mr Carter's out-of-court statements. The applicant also contended that the Court of Appeal had not properly assessed the totality of the evidence in light of a changed evidentiary landscape, including new pathological evidence and the potential unreliability of other witnesses.

The applicant's submissions focused on the principle that corroboration must relate to incriminatory evidence, and that the Court of Appeal had misapplied this principle by relying on evidence that merely supported Mr Carter's general credibility. The applicant highlighted expert psychiatric evidence, particularly from Dr Brereton, which indicated that while individuals with conditions like Mr Carter's might occasionally provide reliable evidence, it was impossible to determine when this occurred without independent corroboration. This, it was argued, meant Mr Carter's evidence could not be relied upon to incriminate the applicant unless independently supported. Furthermore, the applicant submitted that new pathological evidence challenged the original findings regarding the cause of death and the timing of injuries, thereby altering the evidentiary landscape and potentially supporting alternative defences that were not fully explored at trial.

The High Court granted the applicant an extension of time to file the application. The transcript records the submissions of counsel for the applicant, Mr Keim, SC, outlining these grounds of appeal. The respondent's counsel, Mr Hinton, KC, indicated that the only question of law of general public importance that could arise concerned the interpretation of s 353A(1) of the Criminal Law Consolidation Act 1935 (SA) regarding the respondent's ability to call evidence on a subsequent appeal, though he argued this case was a poor vehicle for that determination.

Orders