R v Bromley

Case [2018] SASCFC 41

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BROMLEY

[2018] SASCFC 41

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)

29 May 2018

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - FURTHER EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - OTHER MATTERS

Application for permission to appeal a second time against a conviction of murder pursuant to s 353A of the Criminal Law Consolidation Act 1935 (‘CLCA').

On 14 March 1985, the applicant, Derek Bromley and his co-accused, John Karpany, were convicted by a jury of the murder of Stephen Docoza. At trial, the prosecution led evidence from an eyewitness, Gary Carter, who suffered from schizoaffective disorder. He gave evidence of having accompanied Bromley, Karpany and the deceased to the banks of the River Torrens in the early hours of the morning of 4 April 1984, and of having witnessed the deceased refuse demands by the applicant and Karpany for sexual intercourse, and the subsequent infliction by them of violence upon the deceased.

The prosecution led substantial circumstantial evidence inculpating the applicant, including pathological evidence given by Dr Manock who conducted the post mortem. He considered that: the cause of death was drowning; that there were bruises on the deceased’s body which were caused within 24 hours of his death; and that there was evidence suggesting that the deceased was unconscious prior to his death.

Both the applicant and Karpany appealed against their convictions. One of the applicant’s grounds was that it was unsafe to convict the applicant on the basis of Carter’s evidence, in light of his mental illness. On 16 July 1985, both appeals were dismissed by the Court of Criminal Appeal. The High Court dismissed the applicant’s application for special leave to appeal on 23 September 1986. Later petitions for mercy submitted by the applicant in 2006 and 2011 were refused.

The applicant now seeks permission to appeal a second time pursuant to CLCA s 353A. He adduced expert evidence concerning the reliability of Carter in the light of his mental illness (the ‘new psychiatric evidence’); and concerning the reliability of Dr Manock’s evidence (the ‘new pathological evidence’). The applicant also seeks to rely on further evidence concerning certain other matters.

The respondent also seeks to adduce further evidence as relevant to the assessment of whether the applicant has established the requirements of CLCA s 353A.

Held, by the Court (refusing the application for permission to appeal):

(1) The new psychiatric and new pathological evidence, considered separately or as a cumulative whole, does not satisfy the requirement that the evidence be “compelling”, as it is not “highly probative in the context of the issues in dispute at the trial of the offence” (as required by CLCA s 353A(6)(b)(iii)). Accordingly, permission to appeal is refused.

(2) In the alternative, it is not “in the…

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R v Bromley [2018] SASCFC 41
Case
[2018] SASCFC 41
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CaseChat Overview and Summary

The case of *R v Bromley* concerned an application to the Supreme Court of South Australia, Court of Criminal Appeal, by the applicant, Bromley, and a co-accused, Karpany. The dispute arose from their convictions for the murder of a man named Docoza, whose body was found in the River Torrens. The prosecution's case at trial relied heavily on the testimony of Gary Carter, who alleged that Bromley and Karpany had assaulted and drowned Docoza. Bromley and Karpany both denied involvement in their unsworn statements at trial.

The Court was required to determine whether to admit new evidence, specifically psychiatric and psychological reports, that had become available since the original trial. This new evidence concerned the applicant's diagnosis of schizoaffective disorder and its implications for his reliability as a witness and his susceptibility to suggestibility during police interrogations. The Court also considered the admissibility of prior convictions of Bromley and Karpany for attempted rape and assault, which the respondent sought to use as propensity evidence.

The Court reasoned that while there had been advancements in the understanding of schizoaffective disorder since the trial, particularly regarding memory impairment and suggestibility, this did not automatically render the applicant's original testimony unreliable. The expert consensus indicated that individuals with schizoaffective disorder could still give reliable evidence and recall events accurately, provided there was independent corroboration. The Court also addressed the admissibility of the prior convictions, noting that such evidence would need to be carefully considered in light of its potential prejudicial effect.

Ultimately, the Court dismissed the application. The new psychiatric evidence, while informative about the nature of schizoaffective disorder, did not establish that the applicant's evidence at trial was inherently unreliable or that his prior convictions were admissible for the purpose of establishing propensity. The Court found that the applicant had not satisfied the requirements for the admission of further evidence on appeal.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, the Court now dismisses the application.An overview of the facts and issues as summarised on the first appeal By way of overview, we commence with the summary of the facts compiled by King CJ on the first appeal to the Court of Criminal Appeal:[7]The deceased’s body was found on 9th April 1984 floating in the River Torrens near the Morphett Street bridge. The body was clad in a shirt and windcheater only and was naked from the waist down. The effect of the evidence of a pathologist at the trial was that the deceased was probably, although not certainly, unconscious at the time of drowning. There was evidence of injuries indicating that he had sustained a considerable beating immediately prior to his death.The deceased was 21 years of age and resided with some friends. In the early hours of Wednesday, 4th April, just after midnight, he left the house in which he was residing on his motor cycle stating that he was going to the city to look out for his former fiancée. He did not return home.The principal witness for the prosecution was a 23 year old man named Gary Carter who knew both the accused. The accused Karpany had lived for a while with Carter’s sister, Jennifer. Carter gave evidence that on the evening of 3rd April Karpany came to Mrs Carter’s home and went to sleep there. Just before or just after midnight Carter awakened Karpany and they travelled in a taxi to Hindley Street. Outside Jules Bar in Hindley Street, according to Carter, they saw the appellant Bromley and the deceased Docoza. Bromley and Docoza entered the taxi, after an unsuccessful attempt to buy liquor, and the taxi took them to another bar in Hindley Street where they made another unsuccessful attempt to obtain liquor. They finally left the taxi somewhere at the western end of Hindley Street. The four men then went to the banks of the River Torrens near the Morphett Street bridge. Carter said that Bromley demanded sex from Docoza and was refused. He said that Bromley and Karpany both then set about kicking and punching Docoza and that he rolled into the river. Carter said that Bromley was ducking Docoza’s head under the water while Karpany was standing there. Bromley struck Docoza with a barbell, which Carter had been carrying in a bag. According to Carter, the two appellants stripped Docoza naked. Carter said that he had attempted to give some assistance to Docoza and was frightened. He departed leaving the three men together on the bank of the river. Docoza was still then conscious and asking to be left alone. After obtaining a drink of water at a pie cart nearby, Carter went on to the Morphett Street bridge. After a time he saw the two appellants come up from the river area and on to the bridge. They spoke to him but at about that time a police car came along. The two appellants separated and ran in opposite directions. Bromley hid, but the police found him and spoke to him. Carter then went to the Railway Station and caught a train home.When interviewed by the police Bromley declined to say anything. He made an unsworn statement at the trial in which he denied all knowledge of Docoza or his death. He said that he did not know Gary Carter; he said that he had known Karpany since about 1974 but had not seen him for some two years before he saw him at the preliminary hearing of this charge. He denied having been in the company of Karpany, Docoza or Carter in Hindley Street. He said that he was released from gaol on the morning of the 3rd April. That night he went to town for a drink. He was in a bar in North Terrace but walked down Hindley Street at some time after 2.30am. He was drinking in a bar in Hindley Street west of Morphett Street. He went with two white men to a car park nearby where they drank a bottle of wine. An argument broke out and he was involved in a fight with one of the men. He was heading back to the bar in North Terrace when he saw a police patrol car and hid in some bushes in Festival Drive. He was there spoken to by the police officers in the patrol car. He then went home.Karpany, when interviewed by the police, denied that he had been at the home of Mrs Carter on the night in question and denied that he went to Hindley Street in company with Gary Carter. He said that he had not been to Hindley Street for some months and did not go to the River Torrens at night. He denied that he was in any way involved in the killing of Docoza. At the trial he repeated these denials in an unsworn statement.[7] (1985) 122 LSLS 454, 454-456.

Evidence

Evidence Before The Court

The second particular aspect of the respondent’s response to be foreshadowed here is that, although the respondent did not seek to call the following evidence at trial, the respondent now stresses that the imprisonment from which Bromley was released on Tuesday 3 April 1984 had resulted from the fact that on 11 March 1981, a different Supreme Court jury had unanimously convicted both Bromley and Karpany of together attempting to rape, and of assaulting a 15 year old boy in a laneway off Hindley Street, Adelaide, on the night of 14 November 1980. Walters J had sentenced the applicant to three years six months imprisonment and Karpany to three years.[18] The respondent seeks to rely upon these convictions (to be referred to as the ‘1981 attempted rape convictions’[19]) and their underlying facts as being material establishing a propensity possessed by Bromley (and Karpany) and being relevant to this Court’s assessment as to whether the applicant has established all requirements of s 353A of the CLCA. The evidence concerning the 1981 attempted rape trial and its admissibility as propensity evidence before this Court is also considered in detail below.[18] In addition to the charges concerning the 15 year old boy Mr K, Bromley alone was also charged with, and convicted of, the further offences of assaulting one Mr Karan thereby occasioning him actual bodily harm; and assaulting one Mr Farquar. Both of these offences were committed by him in the course of attempting to escape apprehension. Bromley also had a much more significant prior criminal history than Karpany across three different States or Territories, including one count of rape, three counts of robbery with violence, five counts of assault (some of which occasioned actual or grievous bodily harm), three counts of assaulting a prison officer and one count of arson. [19] Both Bromley and Karpany were defended by experienced counsel at that trial, and neither sought to appeal against conviction or sentence. Mr M David QC appeared for the applicant, and Mr D McLeod for Karpany.PART 3: THE NEW PSYCHIATRIC EVIDENCE The Court received written expert reports from two psychologists (Professor Ian Coyle[20] and Dr Roy Sugarman[21]) and three psychiatrists (Dr Richard Furst,[22] Dr Stephen Hook[23] and Dr William Brereton[24]). All of these experts also gave oral evidence. While this evidence consists of both psychiatric and psychological evidence, it is convenient to refer to it as ‘the new psychiatric evidence’. [20] Appeal Exhibits A1 and A2.[21] Appeal Exhibit A4.[22] Appeal Exhibit A5.[23] Appeal Exhibit A7.[24] Appeal Exhibit A8. A summary of the new psychiatric evidence (in the order in which the witnesses were called) appears below at Appendix 1: A summary of the new psychiatric evidence. For present purposes, the new psychiatric evidence establishes the following propositions:1Since 1984 there has been an expansion of knowledge and understanding in relation to the condition of schizoaffective disorder. It is now well recognised that cognitive impairment in memory functioning may be associated with schizoaffective disorder and that patients so affected are much more likely to have memory defects than was appreciated at the time of the trial in 1985, although the existence of such cognitive deficits was known in 1985. The consensus of expert opinion is that most persons suffering from schizoaffective disorder are unreliable historians due to impairment in memory function and the difficulty they experience in distinguishing between real events and delusions when they are psychotic. Accounts given by persons suffering schizoaffective disorder may not be reliable absent independent corroboration. 2It is now well recognised that a core feature of schizoaffective disorder is that people suffering from it may be susceptible to what is referred to as “suggestibility”. In the present context, this means that such a person may form beliefs that an event occurred, but that such beliefs may emanate from the effect of suggestibility associated with procedures such as interrogations conducted by authority figures, rather than from an actual memory of such an event.3The broad distinction that Dr Barrett postulated in his report dated 6 August 1984 between grandiose delusional beliefs and memory of objective factual events can no longer be accepted.4However, notwithstanding the above propositions, it is generally accepted that a person suffering from schizoaffective disorder is capable of giving reliable evidence and accurately recalling events they witnessed.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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