Bromley v The King

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

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

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

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