R v Bromley - [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 interests of justice”, as required by CLCA s 353A(1), for the applicant’s evidence to be considered on a substantive appeal as it is not “compelling” when viewed in conjunction with the respondent’s further evidence which establishes that there is no significant possibility that a jury in the trial of the applicant, acting reasonably, would have acquitted the applicant had the totality of the evidence proffered by both the applicant and the respondent been before it.
(3) In the further alternative, if permission to appeal should be granted, then having regard to the cumulative effect of all of the evidence and facts and circumstances, the applicant has not, by reference to the test in R v Mickelberg (1989) 167 CLR 259 (endorsed in R v Van Beelen [2017] HCA 48), demonstrated that a substantial miscarriage of justice has occurred.
Criminal Law Consolidation Act 1935 (SA) s 352, s 353A; Evidence (Miscellaneous) Amendment Act 1999 (SA) s 5; Evidence Act 1929 (SA) s 34P, referred to.
Van Beelen v The Queen [2017] HCA 48; Mickelberg v The Queen (1989) 167 CLR 259, applied.
The Queen v Bromley & Karpany (1985) 122 LSJS 454; Bromley v The Queen (1986) 161 CLR 315; Kamleh v The Queen (2005) 79 ALJR 541; Pfennig v The Queen (1995) 182 CLR 461; Sutton v The Queen (1984) 152 CLR 528; HML v The Queen (2008) 235 CLR 334; Hughes v The Queen [2017] HCA 20, discussed.
R v Spencer [1986] AC 128; Standage v State of Tasmania [2017] TASCCA 23; R v Prisk & Harris [2009] QSC 315; R v Van Beelen (2016) 125 SASR 253; Markby v The Queen (1978) 140 CLR 108; Perry v The Queen (1982) 150 CLR 580; Director of Public Prosecutions v P [1991] 2 AC 447; B v The Queen (1992) 175 CLR 599; R v Boardman [1975] AC 421, considered.

R v BROMLEY
[2018] SASCFC 41
Court of Criminal Appeal: Peek, Stanley and Nicholson JJ
THE COURT.
TABLE OF CONTENTS
Part 1: Introduction................................................................................................................. 4
An overview of the facts and issues as summarised on the first appeal..................................... 5
The mental health of Mr Carter generally........................................................................ 8
The identification of Mr Bromley by Mr George generally.............................................. 9

Mr Bromley’s application to the High Court for special leave to appeal................................... 9
Part 2: Overview of the Present Application...................................................................... 12
The scope of the application in overview................................................................................. 12
The response of the respondent in overview............................................................................ 16
Part 3: The New Psychiatric Evidence................................................................................. 18
Four propositions established by the new Psychiatric Evidence.............................................. 18
The applicant’s proposition that persons with mental illness similar to that of Mr Carter
are “much more likely to have memory defects than was appreciated in 1985”...................... 19
The trial evidence of Mr Carter in detail.................................................................................. 22
The trial evidence supporting Mr Carter’s evidence................................................................ 28
Support for his general evidence of the taxi ride to Hindley Street................................ 28
Support for his evidence of the occupants of the taxi...................................................... 30
Support for his evidence of the route taken to the River Torrens................................... 36
Support for his evidence of giving the deceased headache tablets................................. 36
Support for his evidence of the location of the attack on the deceased.......................... 37
Support for his evidence of the timing of the attack on the deceased............................. 37
Support for his evidence of the deceased being stripped of clothing.............................. 39
Further support for his evidence of a violent attack on the deceased............................ 40
Support for his evidence of later obtaining water at the pie cart................................... 41
Support for his evidence of seeing Bromley being approached and spoken to by
two police officers and of himself speaking to police..................................................... 41
Support for his evidence of going to Victoria Square with Father Pearson................... 42

The applicant’s proposition that Mr Carter was “susceptible” to suggestions......................... 43
The chronology of Mr Carter’s relevant statements................................................................. 45
Mr Carter’s statements prior to admission to Hillcrest Hospital................................... 46
Mr Carter’s statements while admitted at Hillcrest Hospital......................................... 54

The applicant’s proposition concerning Dr Barrett’s report..................................................... 62
Part 4: The New Pathological Evidence .............................................................................. 65
Introduction............................................................................................................................... 65
The course of the pathology evidence and relevant submissions at trial.................................. 66
The prosecution opening at trial..................................................................................... 66
Dr Manock’s evidence in chief........................................................................................ 67
Cross-examination of Dr Manock by counsel for Karpany............................................ 72
Cross-examination of Dr Manock by counsel for Bromley............................................. 75
The prosecution address.................................................................................................. 75
The defence (Karpany) address....................................................................................... 76
The defence (Bromley) address....................................................................................... 77
The trial Judge’s summing up......................................................................................... 77

Three propositions advanced by the applicant.......................................................................... 78
Proposition One: Diatom studies and haemolytic staining............................................ 79
Proposition Two: Time frame for infliction of causation of bruises............................... 80
Proposition Three: Support for unconsciousness at time of death................................. 81

Dr Manock’s identification of bruising to the body of the deceased........................................ 81
The cause of death issue at trial – death by drowning.............................................................. 85
Exclusion of death by natural causes........................................................................................ 90
Part 5: Mr Nuske’s Investigation and Other Matters........................................................ 94
Mr George’s evidence concerning Mr Bromley’s clothing...................................................... 94
The trial Judge’s directions concerning Mr George’s identification............................. 95
The decisions of the Full Court and the High Court concerning Mr George’s identification of Mr Bromley 96
The applicant’s proffer of new evidence concerning Mr Bromley’s appearance........... 96

Mr Nuske’s interview with Ms Jennifer Carter on 4 June 1989............................................... 98
Mr Nuske’s interview with Mr Karpany on 22 October 1990.................................................. 98
Non-disclosure of the whole of the police file at trial.............................................................. 99
A suggestion that another person confessed to committing the crime............................ 99

Part 6: The Decisional Pathways before the Court.......................................................... 101
The Court’s primary conclusion – permission to appeal is refused because the
applicant’s evidence is not “compelling”............................................................................... 102
The Court will nevertheless consider the evidence proffered by the respondent................... 103
The “in the interests of justice” requirement for permission to appeal....................... 103

A substantive appeal pursuant to s 353A................................................................................ 107
Part 7: Esoteric Knowledge of Mr Carter and Mr Karpany.......................................... 108
Mr Carter’s display of esoteric knowledge............................................................................. 109
Mr Karpany’s display of esoteric knowledge......................................................................... 112
Esoteric knowledge reasoning: the basis of admissibility...................................................... 117
Part 8: A Relevant Criminal Propensity........................................................................... 123
A summary of the 1981 attempted rape trial.......................................................................... 124
The trial Judge’s summing up....................................................................................... 125
“Mere accessorial” liability? ...................................................................................... 127

The nature of the propensity asserted by the respondent........................................................ 128
The evidence sought to be led by the respondent................................................................... 129
Admissibility of the evidence sought to be led by the respondent......................................... 134
Does this Court have power to admit the propensity evidence?................................... 134
Should the propensity evidence be admitted?............................................................... 135
In what form should the propensity evidence be admitted?.......................................... 143

Part 9: Conclusion and Disposition.................................................................................... 144
Appendix: A Summary of the New Psychiatric Evidence ............................................... 146
PART 1: INTRODUCTION

At about 6:50am on Monday, 9 April 1984, a rower on the River Torrens saw a body floating face down in the middle of the river, directly under the Morphett Street Bridge; at 7:30am police officers recovered the body of Mr Stephen Docoza (the deceased).
On 14 September 1984, after a lengthy oral committal hearing, Mr Alan Moss SM found a case to answer against both the applicant herein, Mr Derek Bromley (sometimes known as Milera) and Mr John Kenneth Karpany (sometimes known as Ringo) and committed them for trial on a charge of the murder of the deceased.[1]
[1] For the sake of brevity and without disrespect, Mr Derek Bromley, Mr John Karpany and Mr Gary Carter, whose names will be repeatedly cited, will usually be referred to as Bromley, Karpany and Carter respectively.
On 5 March 1985, the Supreme Court trial commenced. The respondent’s central witness was Gary Carter (sometimes known as Gary or Beau), a person who had serious mental health problems. He gave direct evidence of having accompanied Bromley, Karpany and the deceased to the bank of the River Torrens and having witnessed: demands for sexual intercourse made upon the deceased, his refusal, and the infliction of violence upon the deceased by the applicant and Karpany. The respondent also led a large amount of circumstantial evidence including the evidence of Dr Manock, the pathologist who conducted the post-mortem on the deceased.
On 14 March 1985, the jury unanimously convicted both Bromley and Karpany of murder. Both had been defended by experienced counsel.[2] Both were sentenced by the trial Judge, Matheson J, to life imprisonment.
[2] The applicant was represented by Mr Kevin Borick (now QC) with Mr Graham Cochrane; Karpany was represented by Mr Ian Thompson with Mr Anthony Possingham.
On 16 July 1985, appeals against conviction pursuant to s 352 of the Criminal Law Consolidation Act 1935 (‘the CLCA') by both Bromley and Karpany were dismissed by the South Australian Court of Criminal Appeal (‘the first appeal’).[3] On 23 September 1986, the High Court dismissed Bromley’s application for special leave to appeal.[4] Petitions for mercy submitted by Bromley in 2006 and 2011 were refused by the Governor. Parole has thus far been refused by the Parole Board.
[3] The Queen v Bromley & Karpany (1985) 122 LSJS 454 (King CJ, Mohr & O’Loughlin JJ).
[4] Bromley v The Queen (1986) 161 CLR 315 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ).
On 5 May 2013, s 353A of the CLCA came into force.[5] It confers a novel jurisdiction on the Full Court to determine a second or subsequent appeal by a person convicted on Information despite an unsuccessful first appeal pursuant to s 352. The jurisdiction is conditioned on the Full Court’s satisfaction that there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal. A second or subsequent appeal may only be brought with the permission of the Full Court. The appeal may only be allowed if the Full Court is satisfied that there was a substantial miscarriage of justice.[6]
[5] Section 11 of the Summary Procedure (Indictable Offences) Amendment Act 2017, which commenced on 5 March 2018, repealed s 353A of the Criminal Law Consolidation Act 1935. Section 353A was re-enacted in identical form as s 159 of the Criminal Procedure Act 1921. These legislative changes have no impact on the subject appeal, which was commenced prior to the commencement of the Act: see s 41 (Transitional provision) of the Summary Procedure (Indictable Offences) Amendment Act 2017.
[6] Adapted from the judgment of the High Court in Van Beelen v The Queen [2017] HCA 48, [1].
On 7 March 2016, the solicitor for the applicant filed a notice of appeal seeking to invoke s 353A of the CLCA. These proceedings were managed by Stanley J on behalf of this Court. As part of that management, Stanley J, from 12 December 2016 to 14 December 2016, and from 20 March 2017 to 22 March 2017, heard evidence from a number of witnesses concerning evidence relied upon by the applicant to satisfy the requirements of s 353A; that evidence was recorded and has now been considered by all members of this Court. From Monday 23 October 2017 until Wednesday 25 October 2017 this Court heard both the application for permission to appeal and the substantive arguments in support of an appeal being allowed. Judgment on all matters was reserved.
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 9^th 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, 4^th 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 3^rd 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 3^rd 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.

After referring to Bromley’s grounds of appeal, King CJ assessed the strength of the respondent’s evidence thus:[8]
The Notice of Appeal did not raise the ground that the verdict was unreasonable or insupportable having regard to the evidence. Ground 5, however, complained that the judge had erred in failing to direct the jury that it would be unsafe to convict Bromley and Mr Borick discussed in detail the evidence against Bromley. I propose therefore to examine briefly the case against Bromley in order to determine whether the verdict of the jury is supportable.
The case against Bromley depended to a considerable extent upon the evidence of Gary Carter. Carter was a schizophrenic. He had been under treatment at Hillcrest Mental Hospital, both as an inpatient and as an outpatient, over a period of time since 1983. His mental health broke down on the morning of 4^th April and he was re-admitted to Hillcrest Hospital that day. It appears that his health had improved by the time of trial. The evidence of a witness with such a history of mental illness obviously required careful scrutiny. There was, however, a considerable body of evidence which supported Carter’s story at various points. The evidence of the taxi driver George leaves no room for doubt that Carter did travel in a taxi with another Aboriginal to Hindley Street as he described. There can be no doubt that Docoza and another Aboriginal there joined the taxi. There can be no doubt that Carter, Docoza, and two other Aboriginals left the taxi at the western end of Hindley Street and walked in the general direction of the River Torrens. There was confirmatory evidence from Gary Carter’s mother that Karpany was asleep at her home on the evening of 3^rd April and left the house with Gary in the early hours of the morning of the 4^th. The identification by the taxi driver George of Bromley as the man who entered the cab with Docoza, whatever criticisms might be cast upon it, tends to confirm Carter’s story that Bromley was the man who joined the cab with Docoza and was one of the party which went on foot to the River Torrens. There can be no doubt that Docoza was subjected to a beating on the banks of the Torrens and drowned. The story of the use of the barbell received some confirmation from the fact that the barbell was found at the scene. Carter’s story of going to the pie cart and obtaining a drink of water received some confirmation from the pie cart proprietor who recalled an incident of that kind at about that time. There is some confirmation of Carter’s story as to what occurred subsequently on the Morphett Street bridge from the evidence of police officers who saw Bromley on the bridge and subsequently saw him run. They found him hiding in bushes in Festival Drive. There is evidence of a stain which could have been a blood stain on Bromley’s shirt.
There is evidence besides that of Carter tending to implicate Bromley. He was unquestionably in the general neighbourhood of the murder at the relevant time. When he saw the police he hid. He had a stain on his shirt. He told to the police a false story, presumably to account for his appearance, of having been involved in a fight in a pub and of having been robbed of $60. If Mr George’s identification is accepted, he was proved to have been in the company of the deceased immediately before the killing and to have walked with the deceased and the two others in the general direction of the scene of the crime. Mr George’s identification of Bromley, although open to the criticisms which have been made of it, has its convincing aspects. He made the identification from a group of photographs. The notion of the identification being wrong involves the coincidence that he selected the photograph of a man who was also in Hindley Street at that time and who had also been released from prison that day as had the man in Mr George’s taxi cab. It also involves the coincidence that Mr George selected the photograph of the very man who was claimed by Carter to have been the man who entered the cab with Docoza. I think that there was a very convincing body of evidence against Bromley and I feel no doubt that the jury’s verdict was correct.
[8] Ibid, 461-462.
King CJ then turned to Karpany’s appeals against conviction and sentence with which it is unnecessary to deal except to notice that, in relation to conviction, his Honour stated:[9]
Finally, it was submitted on behalf of Karpany that the verdict was unsafe and unsatisfactory and ought therefore to be set aside as “dangerous or unsafe in the administration of justice”. This ground was presumably intended to be the basis for setting aside the conviction on the ground that the verdict was unreasonable or could not be supported having regard to the evidence. The ground was not argued. There was ample evidence to support the conviction for murder in the evidence of Gary Carter, if accepted, and in the evidence of Jennifer Carter, if accepted.
[9] Ibid, 465.
Bromley’s unsworn statement at trial
As noted by King CJ above, both Bromley and Karpany elected to read unsworn statements from the dock. In so doing, both avoided any cross-examination on the factual versions they asserted and the jury were denied an ability to assess either evidence given in cross-examination or the demeanour of the accused while giving such evidence.[10]
[10] Since the time of the trial the unsworn procedure has been abrogated by statute. See Evidence (Miscellaneous) Amendment Act 1999 (SA) s 5, commencing 27 June 1999.
At trial, the respondent contended that the jury should find that a number of statements in Bromley’s unsworn statement were lies on the basis that they were clearly inconsistent with items of evidence that the jury might accept as proven. Examples include the following matters.
First, the respondent contended that Bromley's denial that he was with the deceased, Carter or Karpany should be rejected as false on the basis that it was inconsistent with the evidence of both Carter and Mr George.
Second, the respondent contended that Bromley’s denial of the evidence given by both Constables Burden and Griggs that he was walking south, away from the River, at the time that they saw him at about 4:25am on Wednesday 4 April 1984 and his assertion that he was in fact walking north, toward the river, was a significant lie.
Third, the respondent contended that Bromley gave inconsistent accounts as to how he had come to have blood on himself. In his unsworn statement, Bromley stated that the blood on his jacket was from a fight he had been involved in at a pub earlier on in the evening, when a “white bloke” took a swing at him, and he hit the man once in response; he made no claim of having been robbed. However, he had told Constables Burden and Griggs that he had just been “bashed by two men” and robbed of $60. A not insignificant matter is that after Constable Griggs asked to see his wallet, Bromley produced it and Constable Griggs saw that there was money in it, counted it, and found it to be $60 (in the presence of Constable Burden). It would therefore seem that either Bromley was here caught out in a lie about a robbery taking place at all or the robber, on discovering $120 in the wallet, for reasons known only to himself, took only $60 of it.
In any event, Bromley did not persist with this detail in his unsworn statement and Mrs Margaret Bromley gave evidence that the next morning the applicant made no mention of having been robbed or of having been in a fight.
The mental health of Mr Carter generally
In the first appeal the applicant vigorously pursued the matter of Carter’s mental health and, as King CJ noted in the passage above, “The evidence of a witness with such a history of mental illness obviously required careful scrutiny”.
The matter received that scrutiny both at trial and on the first appeal. King CJ concluded that the trial Judge’s direction “stated the correct approach to evidence such as this with clarity and directness. There can be no reasonable objection to the summing up on that score”. That direction was as follows:
Whilst on the subject of witnesses, I want to say something about Gary Carter. He undoubtedly has a mental illness; undoubtedly, as Mr Borick said, he was more affected by that illness on the night in question than he was when he gave evidence before you. You must, therefore, approach Gary Carter’s evidence with considerable caution, especially bearing in mind as the Crown, Mr Martin, put to you that his evidence is so crucial to the Crown case. You must scrutinize his evidence with special care. It is open to you to act on his evidence if you are convinced of its accuracy, and you should not do so without first giving careful heed to the warning that I am now giving you. There is no doubt that in some important respects he is mistaken. I say ‘mistaken’ because I do not think that anyone seriously suggests that he was lying. He was clearly mistaken, you may well think, in believing that all of Docoza’s clothes were removed. He was clearly mistaken in believing that the accused, Bromley, laboured Docoza with the barbell. You may decide that he was right in saying that Bromley picked it up, that he may have been struck one or more glancing blows, but the fact remains that Dr Manock’s evidence undoubtedly proves that Carter was mistaken as to the use made by Bromley of the barbell.
Counsel mentioned other matters as well and you will bear them in mind when considering whether you can accept any part of Carter’s evidence. Mr Martin argued that notwithstanding all that the defence has put to you, and some of which I mentioned, Carter was supported by independent evidence to a substantial extent, and 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 some or a great deal of what he has said, you may do so.
The identification of Mr Bromley by Mr George generally
A further matter, also vigorously pursued in the first appeal, was the identification of Bromley by Mr George, the taxi driver. It can be seen in the passage above summarising the facts that King CJ was well aware of the criticisms advanced concerning that identification but determined that those criticisms did not prevent the conclusion that “there was a very convincing body of evidence against Bromley and I feel no doubt that the jury’s verdict was correct”.
Mr Bromley’s application to the High Court for special leave to appeal
Bromley subsequently applied for special leave to appeal to the High Court. At that time, an applicant was able to make largely unrestricted oral submissions concerning both the granting of special leave and the merits of the proposed appeal on the same occasion. The High Court heard such submissions on 26 and 27 August 1986 which submissions included the detailed canvassing of the two matters noted above, the mental health of Carter and the identification of Bromley by Mr George. The Court reserved its decision. On 23 September 1986, Gibbs CJ (with whom Mason, Wilson and Dawson JJ concurred) and Brennan J (concurring in separate reasons) dismissed the application. The plurality stated:[11]
It appeared in evidence that Carter was a schizophrenic and that on the night in question, at a time after the alleged murder, he had an episode of that illness and was admitted to a mental hospital. There was independent evidence that supported the evidence of Carter that he was present on the river bank at the time when Docoza was attacked; however, the only such evidence that confirms his evidence that the applicants were also present on that occasion is that to which I am about to refer. It is quite clear that the evidence of Carter as to the manner in which Docoza was attacked was inaccurate in some matters of detail.
Bromley and Karpany both made unsworn statements denying that they were present at the scene of the crime and that they had anything to do with Docoza on the night in question. However, the following evidence, if believed, confirmed Carter’s evidence implicating the applicants. Jennifer Rose Carter, a sister of Gary Carter, gave evidence that Karpany, with whom she had at one time lived, told her, a few days after 4 April, that he had joined with Bromley in hitting Docoza. He said that they had bashed Docoza because Bromley wanted to have sex with him and that “they had bashed him that much that they were looking at five years so they just went all the way”. This evidence was of course inadmissible against Bromley.
Michael George, a taxi driver, gave evidence that on the night of 4 April he had driven four men, three of whom were Aboriginals and one of whom was white, to the western end of Hindley Street, where he dropped them, and had then seen the men walking off in the direction of West Terrace. That was in the general direction of the spot on the river bank where the alleged murder occurred. Bromley, Karpany and Carter are Aboriginals and Docoza was white. From photographs George identified Docoza as the white man whom he had driven that night and Bromley as one of the Aboriginal passengers. It was not suggested in argument before us that there was any reason to doubt the accuracy of the identification which George made of Docoza but the accuracy of his identification of Bromley was strongly disputed. Evidence was given by the police that Bromley had been seen running away and hiding in some bushes. Bromley in his unsworn statement explained this by saying that he had panicked because he had only that day been released from jail on parole and that he had just been involved in a fight.
In support of the applications for special leave it was argued that the fact that Carter was a schizophrenic made his evidence so inherently unreliable that it was necessary for the learned trial judge to direct the jury that it would be dangerous for them to act on it unless it was corroborated and to explain to them what evidence was capable of amounting to corroboration. It was said that the recent decision of the House of Lords in Reg v Spencer was authority for those propositions. …
[11] (1986) 161 CLR 315, 317-318.
The plurality referred to R v Spencer[12] and continued:[13]
If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case.
In the present case the danger that Carter might be an unreliable witness must have been apparent to the jury after particulars of the effect of his schizophrenia had been elicited in cross-examination; eg, he said that he thought that he had seen the devil.
[12] [1986] AC 128.
[13] (1986) 161 CLR 315, 319.
Their Honours here referred to the warning given by the trial Judge about Carter’s evidence reproduced above and concluded:
This direction was sufficient to warn the jury of the possible danger of acting on Carter’s evidence if it was not confirmed by other evidence. Later in his address the trial judge referred specifically to the evidence upon which the Crown relied in support of Carter’s testimony.
In similar vein, Brennan J stated:[14]
There was some evidence admissible against each of the applicants which, if accepted by the jury, would have corroborated Carter’s evidence against him. The conviction of neither applicant would have been likely if the jury had entertained a reasonable doubt as to the substantial truth of Carter’s evidence. …
The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer “partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind”: see also per Lord Ackner and per Lord Diplock in Hester. If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given. As Barwick C.J. said in Kelleher:
The rule of practice as to the warning to be given to the jury is related to the reasons which have prompted it. In my opinion, it does not require a warning where those reasons have no play.
When the danger is not obvious to the lay mind, the absence of the usual warning may leave a Court of Criminal Appeal unable to say that a reasonable jury properly directed on the evidence would have convicted. In such a case, there is a miscarriage of justice warranting the quashing of the conviction: R v Bassett. Because a Court of Criminal Appeal may and frequently does quash a conviction when no warning is given with respect to the evidence of a witness in one of the accepted categories, the rule of practice requiring a warning might be thought to have acquired the force of law: cf Kelleher. But in truth the rule of practice acquires only such force as is needed to ensure that, in the circumstances of the particular case, there is no miscarriage of justice: cf Chamberlain v The Queen [No 2]. When a warning is needed to avoid a miscarriage of justice, it must be given; when none is needed to avoid a miscarriage, none need be given. The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content. …
…
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. 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. [Footnotes omitted]
[14] Ibid, 323-326.
The plurality also addressed in detail the applicant’s ground of appeal asserting misidentification of Bromley by the taxi driver, Mr George. Their Honours stated:[15]
A second question that was argued related to the identification of Bromley by the taxi driver George. The evidence of the identification made from the photographs was admissible: Alexander v The Queen. The great danger that a miscarriage of justice may occur as a result of mistaken identification, and the need to warn the jury of the special need for caution before acting on evidence of visual identification, are now well recognized: see Kelleher v The Queen; Reg v Turnbull. In the present case the learned trial judge did warn the jury that they should treat the evidence of identification with special care. No objection to the sufficiency of the direction in this regard was taken either at the trial or before the Court of Criminal Appeal. However counsel for Bromley did seek one redirection regarding this aspect of the matter. The taxi driver described the Aboriginal man whom he identified as Bromley as “very smartly dressed: light coloured suit, white tie, black shirt and hat; unusually, in fact very well dressed”. This description did not correspond with other evidence, including that given by police officers, as to the appearance of Bromley that night. In the course of the summing up the learned trial judge said that George seemed to have been mistaken about what clothing Bromley was wearing, if it was he who got into the car, and added that George might have mistaken the colour of the jacket in the light as it was in Hindley Street. After counsel had raised this matter the learned trial judge redirected the jury, saying:
To avoid a misunderstanding I will remind you that if you think that the witness George might be right, that the man who got into the taxi was wearing a white suit and white trousers, black shirt and tie and hat with a brim, it must be a reasonable possibility the man who got into the taxi could not be Bromley.
The discrepancy between the evidence of George and that of other witnesses as to the clothing worn by Bromley was clearly brought to the mind of the jury. It has not been shown either that the learned trial judge committed any error of principle, or that the trial miscarried in this respect.
PART 2: OVERVIEW OF THE PRESENT APPLICATION
[15] Ibid, 320-321.
The scope of the application in overview

In Annexure A to the applicant’s “Notice of Second or Subsequent Appeal Against Conviction” dated 24 March 2016 (‘the notice of appeal’) the applicant sets out the evidence sought to be relied upon as “fresh and compelling evidence” thus:
18.The fresh and compelling evidence concerns:
a)    the evidence at trial of Dr Manock, including his opinion that Docoza had been injured before death and drowned, having particular regard to his proven lack of qualifications, reliability and credibility shown in other matters relevant to Bromley’s trial;
b)    the reliability of Gary Carter [Carter], who as an alleged eye witness provided the only direct evidence against Bromley. Carter was suffering from schizoaffective disorder at the time of the alleged incident. He had not been taking his medication, and had distorted perceptions at the very time of the Docoza events, including seeing the devil with horns and a red face. He was hospitalised on the same day for several months;
c)    the purported identification of Bromley by Michael George [George], a taxi-driver alleged to have driven Bromley and Karpany to the place where Docoza is said to have died; and
d)    the recantation of Jennifer Carter, Carter’s sister.
19.The evidence is “fresh” because it could not, with the exercise of reasonable diligence, have been adduced at the trial.
20.The evidence is “compelling” because it is reliable, substantial and highly probative in the context of the issues in dispute at the trial of the offence.
Thus the gravamen of the applicant’s case is essentially that there are four categories of new evidence, each of which constitutes fresh and compelling evidence within the meaning of s 353A of the CLCA.
The first category of new evidence is psychological and psychiatric evidence consisting of the reports received, and oral evidence heard, by Stanley J of the witnesses Professor Coyle and Doctors Furst, Hook, Brereton, and Sugarman (to be referred to as ‘the new psychiatric evidence’). The second category of new evidence is pathological evidence consisting of the expert reports received, and oral evidence heard, by Stanley J of the witnesses Professor Thomas and Doctors Collins and Lynch (to be referred to as ‘the new pathological evidence’). These first two categories are clearly the two most strongly relied upon and are the only categories as to which the applicant sought to adduce oral evidence before this Court. The third and fourth categories are dealt with separately later in this judgment.
The Court notes that it has received a number of exhibits as set out in the Exhibit List and numbered 1 to 30. It has also received for its consideration, and subject to its ultimate decisions concerning admissibility and weight, five affidavits (and exhibits) sworn by Mr Christopher J Charles, the solicitor of the applicant, on 7 March 2016, 21 November 2016, 8 December 2016, 8 May 2017 and 22 September 2017 and two affidavits (and exhibits) sworn by Mr Kevin V Borick QC but with the following exceptions:
-As to the first affidavit sworn by Mr Charles: parts of Exhibit “CJC 18” being “DNJ 4” to “DNJ 10”0; “CJC 19” (Professor Plueckhahn); “CJC 20” (Professor Plueckhahn); “CJC 24”; and “CJC 25”;
-As to the second affidavit sworn by Mr Charles: Exhibit “CJC2 9”;
-As to the third affidavit sworn by Mr Charles: Exhibit “CJC3 1”; and
-As to the fourth affidavit sworn by Mr Charles: Exhibit “CJC4 5”.
As to the first two categories of new evidence, the applicant’s document “Statement of Issues” of 2 December 2016 directed to the taking of that oral evidence stated:
1.At trial Carter’s evidence was admitted without objection and he was cross examined as to his observations and his mental state. No expert evidence was called nor was any medical history evidence tendered. No voir dire was undertaken nor does it appear that these issues had been examined at committal. The Crown had provided the defence with very limited information on the day of trial from the late Dr Barrett as to Mr Carter’s general psychiatric condition. This was insufficient to enable the defence to make appropriate inquiries. Dr O’Brien the chief forensic psychiatrist attended the first day of the trial and had the opportunity to observe Carter giving evidence in chief and the first day of the trial. He did not attend thereafter.
2.Evidence is now available from both psychiatrists and psychologists to the following effect;
a.     There has been an expansion of knowledge which has led to forensic psychiatry becoming a specialist field distinct from clinical psychiatry.
b.    The late Dr Barrett lacked the expertise according to contemporary standards and did not perform the necessary analysis which today would be considered essential for any forensic opinion.
c.     The Mini Mental State Examination (MMSE) used was by today’s standards totally inadequate.
d.    Developments in forensic psychology and psychiatry now recognise that people suffering from schizoaffective disorder are more susceptible to the authority of police and interrogative susceptibility and neurocognitive impairment, including suggestibility is now accepted as a core feature of the disorder.
e.     Advances in forensic psychology/psychiatry now recognise the degree of cognitive impairment in memory functioning of patients with schizoaffective disorder. Such patients are much more likely to have memory defects than was appreciated at the time the late Dr Barrett, in providing his assessment and the difficulty in distinguishing between psychotic beliefs and those that are not.
f.     We also note that these are matters accepted by Dr Brereton in his opinion provided to the Crown.
3.The present application seeks permission for a subsequent appeal in relation to fresh and compelling evidence that Carter’s evidence was by reason of his mental condition on the night of the offence inadmissible.[16] Or, that the defence was denied the opportunity both to cross examine him and to elicit other evidence as to his mental condition on the night in question and that in the light of fresh evidence either a much more stringent direction than that which was given by the trial judge was necessary to avoid a miscarriage of justice or that having regard to the fresh evidence the jury verdict was unreasonable and occasioned a miscarriage of justice such that it should be set aside.
[16] Mr James QC, senior counsel for the applicant, specifically withdrew the suggestion that Carter’s evidence was inadmissible in submissions before this Court: “I have to drop the ‘inadmissible’. … the law appears to be that, even if you are suffering from a delusion, if you are capable of going into the witness box, taking the oath and giving the appearance of competence, your testimony can be received, though it is open to impeach that testimony by calling evidence from those present in Court, particularly the specialist such as the psychiatrist in Toohey v Metropolitan Police Commissioner as to the reliability of that testimony.”
4.It will be submitted either an acquittal or a retrial should be ordered depending on which submission in (2) above might be accepted by this Honourable Court.
5.Further it is submitted that the evidence of Dr Colin Manock which in some respects contradicted or cast doubt on the evidence of Mr Carter and in other respects was to the effect that the pathology either corroborated or showed some consistency with aspects of the evidence of Mr Carter should not have been admitted because of
a.     a lack of relevant qualifications in Dr Manock
b.    the relevant evidence of Dr Manock was either unsupported or insufficiently supported by facts, the proof of which was necessary for the expression by Dr Manock of the relevant opinion evidence.
6.Evidence in respect of those matters is now available from
a.     Prof Tony Thomas
b.    Dr Byron Collins
c.     Professor Pluehkahn [sic Plueckhahn][17]
to the following effect
1.    The cause of death of Mr Dacoza [sic Docoza] is un-ascertained.
2.    The evidence of Dr Manock as to drowning whilst DaCoza [sic] was unconscious is impugned upon the basis that there is no evidence of significant subarachnoid haemorrhage in the samples of brain taken for histological examination.
3.    Developments in the science of pathology as to the ageing of bruises is fresh and compelling evidence in the context of Dr Manock corroborating the evidence of Mr Carter as to the infliction of injuries.
7.That evidence is either fresh and compelling in its own right or alternatively insofar as it is inconsistent with the evidence of Dr Manock which corroborated or gave support to aspects of the evidence of Mr Carter provided an essential context to the psychiatric opinion concerning the reliability of Mr Carter’s evidence.
The response of the respondent in overview
[17] Professor Pluehkahn was not called by the applicant. His report is not to be relied upon save that Professor Thomas referred to and adopted a specific part of Professor Pluehkahn’s report, thus in effect incorporating that part as part of his own report.
In its responding document headed “Statement of Issues” (dated 9 December 2016) the respondent states:
1.In broad terms the respondent takes no issue with the factual issues identified by the applicant in the “Statement of Issues” dated 7 December 2016. The respondent does not, however, accept the claim that there was insufficient time to enable the defence to make appropriate inquiries as alleged at point 1 of that statement. In any event, this issue need not be further ventilated at this stage of the proceedings.
2.The respondent has attached a brief summary of the evidence of Edith Carter, Jennifer Carter, Gary Carter, Meredith Burden and Margaret Bromley, as such summaries may assist to understand some aspects of the issues to be ventilated at this stage of the proceedings.
3.The respondent envisages the following procedure will be adopted;
a)    The Court will hear the evidence from the psychiatrists and the pathologist and any other witnesses to be relied upon by the parties.
b)    In the course of the evidence, the Court will rule in relation to objectionable questions or plainly inadmissible evidence, however if there is a substantive argument as to whether the evidence is admissible, the Court may determine to note the objection and admit the evidence de bene esse for the Full Court to consider the issue.
c)    The Court may be requested by the respondent, prior to the calling of the pathologists, to order that the applicant provide particulars as to the specific evidence relied upon by the applicant and how such evidence satisfies the requirements that the evidence be fresh and compelling.
d)    The respondent will not oppose the Court referring the question of permission to appeal to the Full Court pursuant to Rule 119(3) of the Supreme Court Criminal Rules 2014, without first determining whether the applicant’s appeal is reasonably arguable.
e)    The Court will make orders as to the provision of outlines of argument from the applicant and the respondent to ensure such matters are clear, well before the hearing before the Full Court.
We also note here that the respondent in its main written submissions commences with the following brief but helpful overview of their broader position:
The “new” evidence does not undermine the following facts:
-the death of Mr Docoza was at the hands of another in the early hours of 4 April 1984;
-Mr Carter was capable of witnessing the events on 4 April and accurately recalling those events at a later time. Each expert accepted he was capable of being accurate;
-Mr Carter’s evidence was supported in all material aspects by other evidence;
-the applicant was in the same location that Mr Docoza died and he was there at the same time as the death;
-shortly after Mr Docoza is last seen the applicant had injuries consistent with an assault and he admitted to police he had just been in a fight; and
-the clothes and shoes of the applicant were dirty and consistent with the applicant having been in the river.
Thus, in overview, the respondent’s case remains that shortly before being seen by Constables Burden and Griggs at about 4:25am on Wednesday 4 April 1984, the applicant and Karpany had gone with the white, 21 year old male (the deceased) and Carter from Hindley Street to the River Torrens for the stated purpose of waiting for the Criterion Hotel to open for business; Bromley and Karpany had there demanded that the deceased participate in sexual intercourse with one or both of them; and upon him refusing to do so, had inflicted violence such as to constitute a substantial cause of the deceased’s death.
The detailed response of the respondent to the four categories of “new evidence” is dealt with below. However, we here foreshadow two further particular aspects of the respondent’s response before this Court.
The first aspect relates to certain statements made by Carter to: his relatives, to persons at Hillcrest Hospital and to the police; and to statements made by Karpany to Jennifer Carter on 10 April 1984. The respondent contends that the cumulative effect of these statements, taken together with the finding by police divers of the deceased’s desert boots with laces still tied and Carter’s barbell on the river bottom at a position on the river indicated by Carter to Detective Peglar (and the state of the body of the deceased, as discussed below in Part Three) is to establish that both Carter and Karpany respectively had significant esoteric knowledge that: a young man had been violently assaulted near the River Torrens, that clothing had been removed from him, and that he had been thrown into the river. The respondent seeks to rely upon these matters as being relevant to this Court’s assessment as to whether the applicant has established all requirements of s 353A of the CLCA. The topics of esoteric knowledge and the uses to which it may here be put are considered in detail below.
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.
We will now proceed to consider each of those propositions in greater detail.
Proposition One [as set out immediately above]
A good deal of the new psychiatric evidence was directed to establishing the general proposition that persons with mental illness similar to that of Carter are much more likely to have memory defects [less capacity to remember accurately] than was appreciated at the time of the trial in 1985. The respondent does not dispute this and we accept that it is so.
This, of course, would have been very significant if the jury had not known of Carter’s mental illness, or if Carter’s evidence had exhibited no signs of unreliability, such that the jury might have been left with the impression that the witness should be evaluated in the same manner as any other witness. However, the respondent correctly stresses that such was definitely not the situation at trial. The jury were well aware of Carter’s mental illness, his delusions, that his evidence was wrong in relation to a number of topics, and that his reliability was compromised.
As to this central matter, the respondent presents in its annexure E to its main submissions under the heading “Capacity of Carter to Recall Assault” the following analysis of the evidence of the five expert witnesses:
Professor Coyle
In his oral Professor Coyle initially states that there is no way of knowing whether Carter, by reason of his schizoaffective disorder, would be capable of recalling seeing Karpany and Bromley assaulting Docoza on the banks of, and in, the River Torrens. This is inconsistent with his later evidence in cross-examination that when assessing people with schizophrenia or schizoaffective disorder one must look to collateral information to determine whether what they claim to recall is truthful or not.
Professor Coyle notes it is possible that Carter can recall some elements, and it is also possible that he would not be able to integrate that information and encode it into long-term memory.
In his view it is, all things considered, overwhelmingly likely that Carter’s capacity to recall information would be grossly affected. However, in cross-examination he concedes that Carter was not incapable of being accurate, and noted that there seemed to be objective collateral evidence that some of what Carter recalled was supported by other sources.
Dr Sugarman
Dr Sugarman states that literature concerning information processing and encoding in both normal and disturbed individuals has demonstrated conclusively and serially that Carter’s ability to perceive, encode, manage and retrieve information would have been severely compromised for some time before, during and after his scheduling under the mental health legislation.
Notwithstanding Carter’s recall difficulties, in cross-examination Dr Sugarman agrees that if Carter saw Bromley and Karpany assaulting Docoza on the banks, and in, the River Torrens, he would not be incapable of remembering that fact as a result of his schizoaffective disorder.
Further, that Carter wouldn’t be incapable of recalling the assault or giving evidence of it at some later point. Dr Sugarman would be sceptical of whether all of the details were correct. But he stated the “main facet” of that recollection would be in a different category.
Dr Furst
In cross-examination Dr Furst acknowledges that a person suffering from schizoaffective disorder is capable of accurately recalling an incident at a later time.
He goes on to emphasise that “I would never go so far as to say that someone with schizoaffective disorder or any other mental disorder cannot be accepted beyond reasonable doubt, that would be ridiculous”.
Dr Hook
In cross-examination Dr Hook acknowledges that a person suffering from schizoaffective disorder who is in remission is still capable of giving accurate evidence.
Dr Brereton
Dr Brereton states in his report that Carter was not wholly incapable of providing an accurate account of events. Simply, the likelihood he was inaccurate is extremely high and there is no way of determining an accurate recollection from an inaccurate one.
Notwithstanding those concerns, in cross-examination Dr Brereton acknowledges that it was possible that Carter was giving an accurate account.
He gave evidence that in his personal experience that even patients suffering severe symptoms of schizophrenia or schizoaffective disorder have been able to recall events of which there [sic] were a participant. Indeed, some patients were able to get everything accurate.
He notes that the ability of any one person suffering from these illnesses to recall accurately will depend on a number of different considerations, one being the individual themselves.
Dr Brereton agrees that the simpler the event, the higher the likelihood of accurate recall by a person suffering schizoaffective disorder.
The shorter the event, the highly the likelihood of reliability.
The higher the emotion involved in the event, the less the likelihood of accurate recall.
The more concrete the event, the higher the likelihood of accurate recall.
He agrees that for some people asking them to give an account when they are no longer suffering from the symptoms of schizoaffective disorder will increase the likelihood that their account is accurate.

We consider this to be an accurate summary of the evidence on this topic.
The respondent’s ultimate submission is that the new psychiatric evidence simply confirms that which the appellate Courts in the present case have already determined was obvious to the jury. These matters concerning unreliability of Carter were extensively canvassed both before the Court of Criminal Appeal in the first appeal and before the High Court where Gibbs CJ held that the danger that Carter might be an unreliable witness must have been apparent to the jury and that the direction given by the trial Judge “was sufficient to warn the jury of the possible danger of acting on Carter’s evidence if it was not confirmed by other evidence.”[25]
[25] Bromley v The Queen (1986) 161 CLR 315, 320 (Mason, Wilson and Dawson JJ agreed and Brennan J agreed in separate reasons).
Confirmation of Mr Carter’s evidence by other evidence
In considering the new psychiatric evidence relied upon by the applicant, it is necessary to bear in mind that the applicant's position is not that Carter deliberately gave false evidence concerning an attack by Bromley; but rather that his evidence is generally unreliable due to his mental condition, and that Carter himself would not know whether a particular memory was accurate or inaccurate.
In these circumstances, it is particularly important to consider the extent to which the whole sweep of Carter’s evidence concerning the events of Wednesday, 4 April 1984 is supported, rather than merely considering the extent to which his evidence directly concerning the assaults on Docoza is supported. In other words, if it can be shown by confirmatory evidence that Carter’s memory was not significantly impaired concerning the surrounding circumstances it becomes less likely that his memory was significantly impaired concerning the central issue of Bromley's conduct on the bank of the River Torrens.
We will therefore first set out in detail the evidence given by Carter at trial in chronological sequence and then proceed to set out in detail the evidence led at the trial upon which the respondent relied to support Carter’s evidence.
THE TRIAL EVIDENCE OF MR GARY CARTER IN DETAIL
In considering in depth the evidence of Carter, together with the other items of evidence upon which the respondent relied, and now still relies, to support his version of events, it is convenient to first delineate two bookends in time.
At trial, it was of some significance that Bromley was released from prison on parole on Tuesday 3 April 1984. It was an important aspect of the respondent’s case that Mr George, the taxi driver, stated that the man in his taxi in the early hours of Wednesday 4 April 1984, whom he identified as Bromley, said that he had just got out of prison; and indeed that, shortly after, Bromley also said much the same thing to Constables Burden and Griggs. Further, Bromley’s own case in his unsworn statement was that he was in Adelaide that night celebrating his release from prison.
On Tuesday 3 April 1984, Margaret Bromley, the wife of Bromley’s foster brother, picked Bromley up from Yatala Labour Prison at about 9:45am upon his release on parole. At about noon that day, she took him shopping and he bought some items including a new pair of sneaker style shoes. At about 8:00pm that evening, at his request, she dropped Bromley at an address at Torrensville.[26]
[26] Mrs Bromley did not see Bromley again until the next day.
The occurrence of the above undisputed events serves as the first bookend to what may be referred to as the period of disputed events occurring between about 8:00pm on Tuesday 3 April 1984 and about 4:25am on Wednesday 4 April 1984.
The second of the two bookends in time is constituted by the evidence that at about 4:25am on Wednesday 4 April 1984, two uniformed police constables, Meredith Burden and Paul Griggs, saw an Aboriginal man, whom they both identified in Court as Bromley, walking south along the western footpath of Morphett Street Bridge across the River Torrens. His direction of travel was away from the position on the southern bank of the Torrens, a short distance away, at which it was later determined that the deceased had entered the river.
The two police officers gave evidence that Bromley attempted to run and hide from them and that, after searching the area for a time, they located him hiding in some bushes next to a ramp adjoining the bridge to Festival Drive. Two plain clothes railway police officers helped Bromley remove himself from the bushes.[27] Constables Burden and Griggs observed that there appeared to be fresh blood on his shirt, hand and lip. They spoke to him and Bromley gave them his correct name of Derek Bromley and his particulars. Constable Griggs noted them down. It has never been disputed that their identification of him as Bromley was correct. Bromley said that the blood came from having just been assaulted and robbed of $60. He said that he had hidden from police and he wanted to be left alone because he had just been released from gaol; on the prosecution case, this latter statement came very soon after making the same comment to Mr George, the taxi driver. The constables allowed him to leave.
[27] One of whom was Mr Raymond Moyle, who also gave evidence of these events.
Constable Griggs also gave evidence that while he had been looking for Bromley, another Aboriginal male had approached him on the bridge. He described him as wearing a blue jacket and blue jeans and was carrying a blue airways style bag under his arm. Constable Griggs stated that it was the same style of bag as exhibit P8 (which was the blue bag in evidence identified by Carter as the bag he had been carrying that night).
Neither Constable Griggs nor Burden were able positively to identify this second Aboriginal man (who on the prosecution case was Carter). Constable Griggs gave evidence that he thought that the man was behaving in an “unusual” manner; he put this down to intoxication:
QYou said also that when you spoke to the other man, the other Aboriginal man, he gave the impression of being intoxicated?
AYes.
QWhat was it about his manner that gave you that impression?
AThe way he walked up to me and introduced himself, gave me his name and showed me the book and made a comment something to the effect he was going to school; it was just unusual.
QDid he appear agitated?
ANo.
QJust a bit unusual?
AYes.
The next sighting of Bromley (by a witness at trial) was by Mrs Margaret Bromley. She had dropped Bromley at the Torrensville address at about 8:00pm the previous evening and next saw him on Wednesday 4 April 1984 at about 6:00am, when he was returning to her home. Later that morning, Mrs Bromley observed dry mud on the front of Bromley’s trousers and also mud on his new shoes. Bromley (who had to ask her to show him how to use the washing machine) later proceeded to wash his clothing, including the shoes bought the previous day and the jacket which he had borrowed from Mrs Bromley’s husband. When she asked him why he was washing his new shoes, he replied “It gives me something to do”.
Mrs Bromley further stated that her husband’s new jacket had been clean, but was now stained with a clay coloured material, and that she attempted to remove the stains but was unable to do so.
We now proceed to consider in detail the period of disputed events occurring between about 8:00pm on Tuesday 3 April and about 4:25am on Wednesday 4 April 1984, commencing with an examination of the trial evidence of Gary Carter and the circumstantial evidence said by the respondent to support his evidence.
Carter gave evidence at trial that as at April 1984, he was living with his mother, Mrs Edith Carter, at 65 Fleming Crescent, Mansfield Park. He agreed that he had serious mental health problems; in the previous year, 1983, he had been admitted to Hillcrest Hospital for three weeks and had been prescribed continuing medication, but he was not taking that medication. (It may be noted here that Carter had given evidence at the committal hearing in July 1984 at which time his general mental health problems and admissions to Hillcrest were known to defence counsel and he was cross-examined at committal extensively on such matters).
Carter gave evidence at trial that, as at April 1984, he had known Karpany for about the previous seven years, during which period Karpany had been in an on and off relationship with Carter’s sister, Jennifer Carter. Carter said that he had met Bromley only once before, in 1981 at Victoria Square, Adelaide.
Carter gave evidence that on the evening of Tuesday 3 April 1984, Karpany arrived at 65 Fleming Crescent in an intoxicated state and promptly went to sleep in his niece’s bed; he slept there until about 2:30am the next day (Wednesday 4 April) at which time Carter woke Karpany so that they could go to Hindley Street in the city together.
Carter gave evidence that he and Karpany then walked to a telephone box near his home to call a taxi, and then travelled in the responding taxi to Hindley Street. Carter said that he left his home carrying a blue bag which contained a number of items including one of a pair of barbell weights (‘the barbell’), a sheepskin, a cassette case containing cassettes, an assortment of loose medicinal tablets, and other miscellaneous items; he said that he had a habit of “collecting” things and carrying them around. He further stated that he used the barbells every day for exercise and that on this occasion he was going to later exercise in Victoria Square with one of them. He further stated that he later took the barbell out of his bag on two occasions in Hindley Street in Bromley’s presence and was “muck[ing] around doing exercises with the arms”.[28]
[28] This aspect of his evidence is not unimportant in that it demonstrates Bromley’s knowledge of the presence of the barbell and hence the possibility that he made use of it during a later assault of the deceased.
Carter gave evidence that when the taxi arrived, he sat in the front seat and Karpany sat in the back, directly behind him. He said that, at the suggestion of Karpany, the taxi first went to Christobelle Jackson’s house at Hawker Street, Brompton, where it stopped while Karpany went inside for about two minutes to see if he could get some money (but he was unsuccessful in doing so). Upon his return, the taxi transported them into the city. He said that the taxi travelled over the Morphett Street Bridge, turned left on to Hindley Street, and drove just past “Jules Bar” (on the northern side of the street) before doing a U-turn and travelling back in the westerly direction, ultimately stopping outside of Jules Bar.
Carter gave evidence that it was at this time that Karpany and himself both noticed that Bromley was standing on the footpath outside Jules Bar with a white person who Carter had not previously met. Carter gave the following evidence:
AHe was with Stephen, with this white man.
QHad you met Stephen before that night?
ANo, I wouldn’t know him from a bar of soap.
QDo you know his name now?
AStephen Docoza.
(WITNESS SHOWN PHOTOS, MFI P9)
QHave you seen these photos before?
AYes.
QYou showed the police which one was Mr Docoza?
AYes, that one there.
QYou are pointing to Mr Docoza, top left hand photograph.
EXHIBIT P9 MFI P9 tendered by MR MARTIN. Admitted. SHOWN TO JURY
QCan you remember now whether the colour picture was the first one you saw of Mr Docoza, or did the police show you a black and white one?
ABlack and white one, yes.
QDid they show you that out at Hillcrest?
AYes that’s right.
QWould you just look at the black and white photo – does that look like the photo they showed you at Hillcrest?
AYes.
EXHIBIT P11 Black and white photograph tendered by MR MARTIN. Admitted
QThat is the photo of Mr Docoza?
AYes.
Carter said that while he, Karpany, Bromley and the deceased were standing in front of Jules Bar, they asked to buy a flagon from the manager who was standing by the door to the licenced premises. The manager told them they could not buy one, and directed them to “Martinas”, further to the west on Hindley Street. Carter said that the four of them then got back in the same taxi, with him again sitting in the front, and the taxi driver drove them to Martinas, which was on the northern side of Hindley Street, slightly to the east of Register Street. Carter said that once they pulled up near Martinas, all four of them left the taxi but they were again unsuccessful in procuring a flagon.
Carter gave evidence that he had no money, or only had $2, and that it was Bromley who paid the whole taxi fare. Bromley suggested that they go to the banks of the River Torrens and wait there until the Criterion Hotel opened at 5:30am. The four of them thus made their way north along Register Street, across North Terrace, and across the railway yards to the banks of the River Torrens, slightly to the west of the Morphett Street Bridge. Their trip across the railway yards required them to climb over a cement wall by North Terrace, and Carter gave evidence that while he was climbing over this wall, he placed his box of cassettes on the top of it and inadvertently left them there.
Carter gave evidence that during their walk from Hindley Street to the river, the deceased told him that he was not feeling well and that he gave the deceased three pills which he was carrying in his bag, which Carter thought were analgesics or a type of “headache pill”.
Carter gave evidence that they stopped slightly to the west of the Morphett Street Bridge, at or near a landing “by the willow trees” in front of the Australian National Railways rowing club. Carter said that, after arriving there, the following events occurred:
-Docoza was requested by Bromley to have sex with him and refused;
-Bromley and Karpany stripped Docoza of all of his clothing. They attacked Docoza, administering punches and kicks to his body and head;
-Bromley was the main assailant;
-In the course of the attack Docoza fell into the river, and was then forcibly pushed under the water by Bromley;
-Carter then helped Docoza out of the water, but Bromley picked up Carter’s barbell and hit Docoza repeatedly to the face and head with it; and
-Docoza ultimately was forced back into the water and Bromley again grabbed his head and forced it under the water.
Carter gave evidence that he then fled because he “freaked out”. When he fled, the deceased was in the water, and was shouting “leave me alone”.
Carter gave evidence that he returned to the cement wall and picked up his cassette case which he had inadvertently left there. He then went to the pie cart underneath the Morphett Street Bridge and obtained a paper cup of water. He then walked onto the Morphett Street Bridge, at which time Bromley together with Karpany emerged from the riverbank area and approached him on the bridge. He gave them some water from the paper cup and asked if the deceased was all right; one of them, he could not remember which, assured him that he was all right.
Carter gave evidence that he had left his blue bag near the riverbank when he fled, and that when he later spoke to Bromley and Karpany on the bridge, he observed Karpany carrying it as he left the bridge.
Carter gave evidence that a police car turned on to the bridge, and Bromley and Karpany fled in separate directions. He said that the police car stopped and two police officers (who on the prosecution case, were Constables Griggs and Burden), asked him if he had “seen two Aboriginals with jackets on”. Carter further said that these two police officers asked his name and where he was going, to which he responded that he was going home.
Carter gave evidence that he then observed more police cars arrive and he then saw police locate Bromley, who was hiding near the road that “comes out from the railway station”. He saw police “get Derek in the car”. He then left the area and caught the first train to Marion, at about 6:00am, to his sister Jennifer Carter’s home.
Carter gave evidence that he stayed at Jennifer Carter’s home for one or two hours. He then caught the train into Adelaide and there ran into a friend, Ray Crombie. Later, by chance, he saw Jennifer Carter at Victoria Square and they, together with Crombie, took a taxi to Edith Carter’s house at Mansfield Park. He said that he was “feeling ill” and “mumbling too much to [his] family … trying to get it out what happened” the night before.
Carter gave evidence that later, on the afternoon of that same day (Wednesday 4 April 1984), he caught a taxi from Edith Carter’s house to the “Other Way Centre” on Pirie Street to see Father Tony Pearson (who paid for the taxi). Carter gave evidence that he was concerned that Karpany had his blue bag and he asked Father Pearson to drive him to Victoria Square since he knew that Karpany could often be found there. Father Pearson did so. Karpany was in fact there and Carter saw him from the car, alighted (leaving Father Pearson in the car), approached Karpany and the following ensued:
QDid you see John Karpany that day, that Wednesday, before you went to Hillcrest?
AYes, I seen him in the square, Victoria Square. Father Tony drove his car on to the square and I was looking for my bag. I seen Johnny but he reckons it’s down the River Torrens.
QThat is what John said to you?
AYes, and I said ‘You know what you done John’ and John didn’t answer me back. He was just sitting there having a drink of wine and he had a real funny expression on his face. To me he didn’t say anything. Then Father Tony took me up to Hillcrest.
Carter gave evidence that Father Pearson then drove Carter to Hillcrest where he was admitted and stayed in the Anderson Ward for about three months, although he “escaped” a number of times during this period to visit his mother, his sister Jennifer and his then girlfriend, Lesley.
THE TRIAL EVIDENCE SUPPORTING CARTER’S EVIDENCE
Support for Carter’s general evidence as to the taxi ride to Hindley Street
Mrs Edith Carter
Mrs Edith Carter, gave evidence that, as at April 1984, her son Gary Carter, with whom she lived, had mental health problems, that he had been in Hillcrest Hospital in 1983 and that he had been on medication. She also gave evidence that he used to carry around a bag in which he had a sheepskin rug and other items that he used to “collect”.
Mrs Carter gave evidence that at about midnight[29] on Tuesday 3 April 1984 she returned to her Mansfield Park home; that Gary Carter was in the kitchen; and that she was told by her daughter, Beverley Carter, that Karpany (whom she knew as her daughter Jennifer’s partner) was sleeping in her grandson’s room. She looked in that room, turning on the light, and saw that Karpany was indeed asleep in her granddaughter Tania’s bed; she found that Tania was asleep in a bed in her, Edith Carter’s, room.
[29] Mrs Carter agreed in cross-examination at the committal hearing that she might have arrived home at around 9:00pm or 10:00pm.
Mrs Carter gave further evidence that at about 2:00am or 3:00am the following morning (Wednesday 4 April 1984), she heard Carter speaking to Karpany, and say, “Come on Ringo, we’re going” (“Ringo” being Karpany’s nickname). She heard this clearly because Carter used to talk loudly since he was hard of hearing. She said that Karpany mumbled in response, and then she heard them leave, with the door closing behind them.[30] She said that when she awoke at 7:00am that morning, neither Karpany nor Carter were there.
[30] She gave evidence that as at 3 April 1984, Carter spoke loudly due to him being partially deaf, and at that time not having a hearing aid.
Ms Beverley Carter

Although it is unnecessary for our decision, we conclude that the weight of the respondent’s two additional heads of evidence, both singly and cumulatively, add significant additional weight to the considerations already supporting this Court’s primary conclusion that permission to appeal should be refused. They do so in two ways. First, the esoteric knowledge evidence directly opposes aspects of the applicant’s new psychiatric evidence so as to directly militate against a conclusion that it is “compelling”. Secondly, both the esoteric knowledge evidence and the propensity evidence, taken singly or cumulatively, demonstrate that the “in the interests of justice” requirement is not satisfied for the reasons stated above.
We further indicate that, should the view be taken that permission to appeal should be granted, we have considered the evidence and the submissions of the parties in a way no less comprehensive than would occur on a substantive appeal. Having regard to the cumulative effect of all of the evidence, facts and circumstances (including the cumulative effect of the same considerations that militate against the granting of permission to appeal), we would dismiss a substantive appeal on the basis that the applicant has not, by reference to the test in Mickelberg[121] endorsed in Van Beelen,[122] demonstrated that a substantial miscarriage of justice has occurred.
[121] (1989) 167 CLR 259.
[122] [2017] HCA 48.
Orders
The order of the Court is: Permission to appeal is refused.
APPENDIX: A SUMMARY OF THE NEW PSYCHIATRIC EVIDENCE
A summary of “the new psychiatric evidence” in the order in which the witnesses were called is as follows.
Professor Coyle
Professor Coyle outlines the problems and inaccuracies of memory. He reports on the considerable body of the research conducted in the area since the mid‑1980s and discusses the research on memory deficits and schizoaffective disorder. He reports that individuals with psychotic symptoms such as schizoaffective disorder are more prone to the suggestive effects of repeated questioning than individuals not suffering from profound mental illness; that they are prone to agree with propositions put to them so as to please the interviewer or to get the interview over and done with. He expressed the opinion that the Judge’s directions to the jury at Bromley’s trial were not adequate in the light of current knowledge regarding memory deficits and schizoaffective disorder.
In his report Professor Coyle refers to extraordinary advances that have been made since 1985 in knowledge with respect to memory, cognition and interrogative suggestibility in individuals generally, and more specifically those suffering from psychotic disorders such as schizoaffective disorder. He says it is now well established that individuals with schizoaffective disorder are much more prone to have memory defects than was thought in the mid-1980s. He considers that the memory of a person experiencing gross hallucinations would be grossly affected. He is of the opinion that Carter was experiencing first rank Schneiderian symptoms at the time he allegedly witnessed the murder of Mr Docoza. In those circumstances he cannot accept that Carter’s evidence can be relied upon in that his capacity to discriminate between actual events and hallucinations must have been profoundly compromised. He says there is simply no way of knowing whether what Carter claimed to have seen did occur or whether it was an hallucination.
In his oral evidence Professor Coyle explained that first rank Schneiderian symptoms refers to a patient suffering the delusion that they are under the direct control of an outside agency in respect of their thoughts, feelings and actions. He noted that the categorisation of first rank Schneiderian symptoms does not matter. The critical point is that Carter was experiencing grossly psychotic symptoms at the time he witnessed the alleged events. Professor Coyle said it is overwhelmingly likely that Carter’s ability to recall the things he claims to have witnessed would have been grossly affected and it is not possible to be certain about anything he claimed to have observed. There is just no way of knowing whether an account from a person experiencing psychosis has a kernel of truth that has been massively embellished or whether the whole thing is a delusion. He said that confabulation is very common in cases of schizoaffective disorder when patients are trying to recall what happened while they were in the grip of a psychotic state. He said that just because a person’s memory is detailed does not mean it is accurate; for example, Carter’s account of Mr Docoza being bludgeoned with a barbell. Cognition and memory defects in persons suffering from schizoaffective disorder are now considered to be much more profound and all-encompassing than was the case in 1985. The literature in this area supports the proposition that not only are there defects in cognition but memory defects are almost universal in persons suffering from schizoaffective disorder. He said that due to the process by which information becomes encoded in the mind and is retrieved as memory, attempts to identify what Carter did or did not see while in the grip of a psychotic state are futile. He said psychotic individuals who cannot distinguish reality from hallucinations are much more prone to interrogative suggestibility.
Professor Coyle agreed with Dr Hook and Dr Brereton that given the manner in which Carter’s statements were taken by the police, the terms of his statement may create a false impression of rationality and accuracy. He also agreed with Dr Brereton that Dr Barrett’s opinion drawing a distinction between Carter’s delusional beliefs and his description of the offence is now recognised as incorrect. Even if Carter was in remission when he gave his evidence, the problem with his evidence arises from the earlier process of the encoding of his memory at the time he witnessed the alleged events on the banks of the Torrens. It is impossible to know where confabulation stops and reality starts. Carter would not have known whether his evidence was the truth. The whole point about contamination of memory is that the memory is altered, erased or otherwise affected in a fashion that becomes real to that person.
In cross-examination, Professor Coyle acknowledged that prior to 1985 there had been research conducted and articles published in which it was recognised that people suffering from schizoaffective disorder had memory deficits. He also accepted that when assessing patients with schizophrenia or schizoaffective disorder he would look to collateral information to determine whether what they claimed to recall is truthful or not. He conceded it is possible that Carter could recall some elements of what he saw but it is also possible that he would not be able to integrate that information and encode it into long-term memory. He also conceded that Carter was not incapable of being accurate in his recollection of an event he witnessed and noted that there seemed to be objective collateral evidence that some of what he recalled was supported by other sources. That independent corroboration does suggest accurate recall.
Further, Professor Coyle said that while Carter was clearly prone to interrogative suggestibility, he accepted that there is no evidence of suggestive questioning of Carter by police. He acknowledged that if Carter said something spontaneously to someone, and later repeated the same statement to police, that would tend to suggest that what he said to the police was not attributable to suggestibility.
Dr Sugarman
In his report Dr Sugarman set out the developments since 1984 in the understanding of the degree and nature of cognitive impairment flowing from schizophrenia and related illnesses. He says that since 1984, neurocognitive impairment has come to be seen as a core feature of psychotic disorders such as schizophrenia and schizoaffective disorder. Since that time it has been recognised that persons suffering from those conditions are vulnerable to suggestion and may want to please or placate an interrogator. He accepts that prior to 1985 it was well known that a person suffering from delusions may not be able to distinguish between fact and fantasy. During his training in the 1980s he was taught that delusions are fixed, false beliefs which the patient is unable to recognise are false.
Dr Sugarman reviews the Hillcrest hospital records and the statements obtained by the police from Carter. They cause him significant concern as to what Carter actually recalled as distinct from what he incorporated into his memory as things he came to believe the police wanted him to say due to a long interrogation process. In his oral evidence he stated that this process may have been further affected by Carter’s reading of reports in the newspapers of the discovery of Mr Docoza’s body in the Torrens. He considered that there is a significant chance that Carter’s recall was unreliable and subject to both suggestibility and confabulation and it is likely that aspects of his evidence were incorrect and inaccurate; his lack of reliability was due to his suggestibility, his psychosis, his delusions, his cognitive impairments and the effects of medicine as well as symptoms of anxiety and depression.
Dr Sugarman identified particular features of the evidence given by Carter at Mr Bromley’s trial which reflected on the quality of Carter’s unrehearsed recall of events surrounding Mr Docoza’s death. He noted that Carter was unwell for about four months before and after his hospitalisation. During the time he was interviewed by police he was generally grandiose, irritable, difficult and insightless. Carter was anxious about being interviewed by police. On 19 April 1984 he was interviewed and reassured he was not in strife. He told police he wanted to join them because he “couldn’t cheat them”. At the same time he said the devil was talking to him with shining lights and tunnels. He was clearly delusional with command hallucinations, grandiosity and paranoia. His recall mechanisms and working memory were all dysfunctional at that time.
At this time, while Dr Barrett was advising the Clerk of Court that Carter was not fit to attend court and give evidence, the police nonetheless were taking statements from Carter. While there is in the clinical records from Hillcrest occasional reference to Carter being cognitively intact, this appears to be based on the results of a Mini Mental State Examination (MMSE). It is now recognised that such a test is not sufficient to determine whether Carter was cognitively intact at the relevant time. The result of that test does not demonstrate that Carter had a reliable memory of past events but merely that he was oriented in place and time.
In cross-examination, Dr Sugarman agreed that some of Carter’s evidence may be correct. If he was treating a person with Carter’s history he would not act on anything he said unless he was able to confirm that account from other reliable sources or people. He noted that Carter’s lack of insight and inability to recall his more florid delusions when he gave evidence at Bromley’s trial, indicates he was severely ill and poorly processing information at the time he witnessed whatever occurred on the banks of the Torrens. Having considered Carter’s evidence he is of the view that his recall of details of the offence given in evidence bore little in common with the events he narrated to the staff while he was hospitalised at Hillcrest. He thinks that Carter was never confident that he accurately recalled those events.
Dr Sugarman conceded that he made an assumption that there were discrepancies in Carter’s account to hospital staff based only on his interpretation of the hospital notes. While Carter’s account of the circumstances of the murder cannot be regarded as reliable from a neuropsychological viewpoint, some of the evidence he gave may be correct notwithstanding his general unreliability.
Dr Furst
In his first report, Dr Furst answers a number of questions regarding the development of forensic psychiatry since the 1980s. He says that over the last 30 years considerable progress has been made in theories, methods and techniques in forensic psychiatry, including diagnostic symptoms, specialist knowledge and treatment modalities.
Dr Furst notes that the research into cognitive deficits in schizoaffective disorder is closest to the research findings for schizophrenia, in terms of expected cognitive deficits. Research demonstrates there is a high proportion of cognitive impairment and decline in memory functioning among patients with schizophrenia.
Dr Furst summarises the information he received regarding Carter’s mental health as it existed around April 1984. He notes Carter was probably manic and psychotic when he was interviewed by police, adding that, these days, this would generally preclude participation in a police interview. Most forensic and general psychiatrists would prefer that police interview an accused and/or witness once the more florid symptoms of psychosis and mania have resolved. Carter’s psychotic and manic state during the initial police interview could have made him more susceptible to the authority of police, such as suggestions and prompting, and he may have been trying to please them.
Dr Furst notes that Carter’s detailed account is difficult to reconcile with observations of his mental state at that time, namely that he was delusional and manic. These are symptoms frequently associated with cognitive impairment and/or memory loss and he considers that it is difficult to determine with any degree of certainty or reliability what events really took place and what memories may have been based on delusional interpretations, hallucinations and/or false memories.
In his report Dr Furst expresses the opinion that Dr Barrett’s statement that a distinction could be drawn between Carter’s delusional and grandiose beliefs and his account of witnessing the offence, is difficult to reconcile with Carter’s reported clinical presentation. He notes that Carter gave answers under cross-examination suggesting he was psychotic at the time of the alleged events on the banks of the Torrens. He observes that Dr Ash’s statement of 30 April 1984 (that Carter was not hallucinating or suffering from delusions) is at odds with Dr Barrett’s report. He also comments that the statement of the psychiatric nurse, Mr Steele, of 11 April 1984, illustrates a number of inconsistencies in Carter’s account of events. Dr Furst gave evidence that it is not Carter’s mental illness per se that makes him unreliable; rather it is the inconsistencies in his account.
In his supplementary report Dr Furst considers the direction given by the trial Judge, Matheson J. He notes the Judge’s direction that the jury approach Carter’s evidence with “considerable caution” and that the summary of inconsistencies was probably reasonable. However, in his opinion, the direction that Carter was “more affected by that illness on the night in question than he was when he gave evidence before you” probably failed to convey the extent to which Carter was mentally impaired on the night in question. He expanded upon his opinion in this regard in his oral evidence. He said that his concern was that the jury, being lay people without any background in psychiatry, may not have understood the severity of Carter’s illness as documented in the Hillcrest case files and other statements. Accordingly, the direction was insufficient because it failed to tell the jury that he had presented to the hospital as floridly psychotic and manic, which differed from his presentation before the jury, when he was relatively stable and intact.
In his oral evidence, Dr Furst stated that, having conducted a review of the medical records, transcripts and other expert reports, his opinions relating to Carter’s evidence had strengthened. He observed an inherent unreliability in Carter’s first version of events when he was manic and psychotic and stated that he saved a drug addict’s life and planned to call a director of The Advertiser. He said that people suffering schizoaffective disorder are vulnerable to suggestibility and confabulation.
He gave evidence that the appreciation of cognitive deficits associated with schizophrenia and schizoaffective disorder in 1985 was not nearly as rigorous or recognised as it is now. He said that a practising psychiatrist in 1984 would not have had the resources available to distinguish reliably real memories from memories that were the product of delusion. Given Carter’s relatively detailed account of the incident, which was inconsistent with his clinical presentation of being manic, psychotic and thought disordered, it is possible that he had come to believe memories that were simply untrue.
Dr Furst stated that forensic psychiatrists cannot reliably distinguish what is real from what is delusion, confabulation, or might arise from suggestibility in their patients. The best those patients can do is provide evidence that they think is reliable. A psychiatrist would only be in a slightly better position than a lay person to determine what might be delusional, what might be truthful, what might be the result of suggestion and what might be confabulation.
In cross-examination, Dr Furst conceded that his opinion as to Carter’s unreliability does not take into account independent corroboration of various aspects of Carter’s evidence. He accepted there is not one aspect of Carter’s evidence that he could point to and identify as confabulation.
Dr Furst was also of the opinion that the most reliable statements or versions given by someone suffering schizophrenia or schizoaffective disorder are those made shortly after the event itself. The capacity of a person suffering from schizophrenia or schizoaffective disorder to recall specific events is variable. Some patients have a very good recollection. He estimated that around two-thirds to three-quarters of his patients who have been involved in violent crimes have a fairly good memory of the event.
Dr Furst conceded that if Carter had made spontaneous statements to the effect that Bromley and Karpany had bashed Docoza prior to speaking to the police, that would be relevant to whether his answers were affected by his suggestibility.
Dr Hook
In his report, Dr Hook reviews Carter’s history, noting he has not been able to view any hospital records or clinical notes. He considers that Carter was clearly psychotic on admission and was hypo-manic for several weeks during which time he was treated with a high level of medication which had a delayed response time, indicating the severity of his illness. He considers that Dr Barrett did not examine Carter in a forensic manner. Accordingly, there was no proper foundation for Dr Barrett’s opinion about Carter’s reliability. Dr Hook considers that Carter’s evidence was of low reliability.
Dr Hook comments that Carter’s police statements, which report events in a reasonably clear sequence and lack any evidence of thought disorder or delusional ideas, seem at odds with his reported mental state at the time of his hospitalisation. He says it is difficult to resist the conclusion that these statements do not reflect the spontaneous utterances of Carter at the time, but were structured to a significant degree by those taking the statements, which may have created a false impression of rationality and accuracy. Nonetheless, he notes a number of inconsistences in those statements and forms the opinion that it was possible that, with increasing awareness of his situation at the time, Carter was keen to minimise his involvement as far as possible.
Dr Hook concludes his report by observing that, in contrast to Dr Barrett’s assertion, it is simply not possible to make a clear-cut distinction between psychotic manifestations and “rational” thinking in an individual who is acutely psychotic. Expert evidence would have been essential to assist the jury in making a proper assessment of Carter as a witness. He says that since 1985, the field of forensic psychiatry has developed to a point where today it is inconceivable that a witness in Carter’s situation would not be assessed by a specialist forensic psychiatrist. A psychiatrist who only practises clinically, without more, does not have the relevant skill set or experience to provide an opinion regarding the impact of a patient’s mental state on their ability to be a reliable witness at trial. He says it is obvious from Dr Barrett’s reports that he did not perform the basic analysis which, today, are considered essential to provide any forensic opinion.

In cross-examination, Dr Hook stated that it is a relevant consideration when assessing the reliability of a person suffering from schizoaffective disorder to look at whether there are any patterns in their delusions. He did not see anything to make him believe Carter was confabulating by the time he was giving evidence at trial. His opinion that it is likely Carter’s evidence was of low reliability is more based on the fact that he witnessed an event while suffering from a schizoaffective disorder, than that there were some inconsistencies in his account of the event.
Dr Hook said that a person suffering from a schizoaffective disorder who gave evidence while still suffering from the acute symptoms of that disorder is more likely to be unreliable than when they are in remission. He acknowledged that it is not uncommon for a person, even in the acute states of schizoaffective disorder, to be able to accurately recall that they had done something a week, two weeks or a month earlier. A person suffering from schizoaffective disorder, who is in remission, is capable of giving accurate evidence.
Dr Hook agreed that Karpany’s admissions to Jennifer Carter about the assault on Mr Docoza could be corroboration of what Carter said he witnessed.
Dr Hook agreed that the predominant feature of Carter’s delusions is a theme of grandiosity and special powers and abilities. Carter’s belief that he was a league footballer, a psychic, a minister of religion and a black belt describes a different type of act or event from recounting that he saw someone being bashed by another. He accepted that while that distinction is not determinative, the difference between the two situations is a relevant consideration.
Dr Brereton
Dr Brereton provided a report to the Director but was called by the applicant.
In his report, Dr Brereton considers Carter’s psychiatric history as disclosed by the hospital records and canvasses the opinions of Dr Barrett and the other experts who have given evidence in this matter.
Apart from disagreeing with Professor Coyle’s opinion that Carter was suffering from first rank Schneiderian symptoms around April 1984, Dr Brereton agrees with the opinions of the other experts, as set out in their reports.
Dr Brereton notes that there have been substantial advances in the state of psychiatric knowledge regarding the effects of schizophrenia on cognition and memory since 1984. The level of knowledge and research about cognitive impairments in schizophrenia has advanced to the point that the current consensus is that cognitive deficits are primary and core deficits in patients with schizophrenia and schizoaffective disorder.
Dr Brereton considers it is extremely likely that Carter was psychotic at the time of the alleged offence. His condition had deteriorated some four weeks prior to admission, he had ceased his medication and was using illicit drugs and alcohol. The history set out in the medical notes from the Hillcrest Hospital discloses that, from his admission until 19 April 1984, Carter was suffering significant symptoms of mental illness and hallucinations, indicating he was severely unwell and acutely psychotic. On 9 May 1984, he was still suffering delusions which demonstrate that this was a very severe episode. While later he was able to give police an account that was more intelligible, it is not necessarily more reliable, because Carter’s memory and understanding was formed at a time when he was severely psychotic. Even his understanding and recall of the incident was directly affected by psychotic symptoms, as demonstrated by his claim to have saved a man’s life by putting drugs in his mouth and fighting his attackers off with nunchakus.
Dr Brereton disagrees with Dr Barrett’s opinion that it was possible to draw a distinction between Carter’s delusional beliefs and his description of the events on the banks of the Torrens. He says Carter was grossly affected by the symptoms of his mental illness at the time of his admission to Hillcrest Hospital in April 1984. This would have influenced his perception, interpretation, memory and account of the actual events he witnessed and participated in. In addition, Carter had described experiences that had no basis in reality, but was not able to distinguish them from reality. His illness would have affected his cognitive functioning globally, so it would not be possible to distinguish some aspects of his recollections and assertions as unaffected by his mental illness and, therefore, accurate.
Dr Brereton considers that Dr Barrett’s opinion (that it was possible to distinguish between Carter’s delusional beliefs and his account of the offence on the basis that the former were characterised by grandiose beliefs but the latter was not) is compromised by a factual inaccuracy. He considers that the hospital notes show that there was a grandiose element in Carter’s report to staff of the events on the banks of the Torrens; on his admission, Carter claims to have “saved a drug addict’s life – by intervening when he saw two Aboriginal men beating up a drug addict and throwing him in the river”. Two days later, on 6 April 1984, he was still talking of “saving drug addicts on the banks of the Torrens and fighting off all attackers”. On 25 or 26 April 1984, Carter mentioned that the “murder victim could have been king of Australia”. Dr Brereton notes that the psychiatric nurse, Mr Steele, in his statement on 11 April 1984, said Carter told him “he had saved this man’s life by putting some drugs in his mouth ... then he told me he had pulled a pair of nunchuks out of his bag and fought these two men off”. Dr Brereton considers this account by Carter was affected by his pathological grandiose thinking.
However, Dr Brereton says that Carter was capable of providing an accurate account of events of that night, but the likelihood he was inaccurate in some detail is extremely high and there is no way of determining an accurate recollection from an inaccurate one.
Dr Brereton considers that, given the specific nature and severity of Carter’s symptoms around April 1984, as well as the general effects that schizoaffective disorder has on perception, memory and beliefs, Carter’s evidence is very unreliable. Yet there remains the possibility that his recollection of events could have been sufficiently accurate to be useful to the Court, but not in isolation. Carter’s evidence could have been used to strengthen an existing case, for example, by corroborating other witnesses. However, almost the entirety of Carter’s evidence would need to be corroborated before his account of events could be considered reliable; for example, evidence from a pathologist might precisely confirm Carter’s account of the nature of an assault, but he would still not consider him a reliable witness in identifying who had inflicted the injuries. He considers that the unreliability of Carter has less to do with the consistency or inconsistency of his account, and more to do with the severity and nature of the symptoms with which he presented.
In his oral evidence, Dr Brereton stated that in 1984, psychiatrists would not have been aware of the fundamental nature of the cognitive deficits in schizophrenia. They would not have had the sophisticated awareness of the precise nature of those cognitive deficits, and they would not have understood, as well as is understood now, the course of the cognitive deficits through a period of illness.
Dr Brereton considered that the reliability of Carter is not improved by the fact that he was providing an account that was more proximate to events because, at that time, he was acutely unwell. In his oral evidence, he stated that his concern about Carter’s reliability centred around his undoubted perceptual difficulties and abnormalities, and the fact that he is highly likely to be wrong in matters of detail. Nonetheless, he accepted that it is unlikely that Carter’s account of events on the banks of the Torrens arose de novo without some precipitating event, although that does not mean that his account was accurate.
Dr Brereton said that, in his personal experience, patients suffering severe symptoms of schizophrenia or schizoaffective disorder have been able to recall events in which they have participated. The capacity to provide an accurate recollection of events varies from patient to patient. The simpler the event, the higher the likelihood of accurate recall by a patient. Also, the shorter the event, the greater the likelihood of reliability. On the other hand, the higher the emotion involved in the event, the lower the likelihood of accurate recall. The more concrete the event, the higher the likelihood of accurate recall.
Dr Brereton accepted that some people can give an accurate account of events after they cease to suffer from the symptoms of schizoaffective disorder.
In cross-examination, Dr Brereton acknowledged that Professor Coyle’s opinion that there is simply no way of knowing whether what Carter claimed to have seen actually occurred, or whether it was an hallucination, is only correct if you consider Carter’s evidence in a vacuum. If his account of events is independently corroborated, his evidence can be accepted as correct. Likewise, his view that it is likely that Carter’s account of events is inaccurate, and that there is no way of determining an accurate recollection from an inaccurate one, is purely clinical without regard to other corroborating evidence.
Dr Brereton accepted that Carter’s evidence that he saw Bromley bash Mr Docoza and throw him in the river is very much removed from the other delusions that he was experiencing at the time, insofar as it does not have an element of grandiosity and is not in keeping with the nature of his other delusions.
Dr Brereton said that patients with schizoaffective disorder are susceptible to suggestion but it would very much depend on the individual as to how they would respond in practice. Carter’s comment about wanting to join the police because he “couldn’t cheat them” shows that there is good reason to think he falls into a category of somebody who would have been susceptible to giving an inaccurate account of events.
In relation to suggestibility, Dr Brereton agreed that a statement made by Carter to Jennifer Carter on the night of these events would not have been affected by his potential for suggestibility. He also accepted that there is no evidence of police prompting Carter when interviewing him.