Bromley v The King [2022] HCATrans 158 (16 September 2022)

Last Updated: 19 September 2022

[2022] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A40 of 2021

B e t w e e n -

DEREK JOHN BROMLEY

Applicant

and

THE KING

Respondent

Application for special leave to appeal

KEANE J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 16 SEPTEMBER 2022, AT 11.27 AM

Copyright in the High Court of Australia

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

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

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

KEANE J: Yes, Mr Keim.

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

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

MR KEIM: Sorry, your Honour.

KEANE J: Mr Hinton, is that extension opposed?

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

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

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

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

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

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

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

Second, the Court of Appeal failed to pay attention to those aspects of Mr Carter’s evidence in the trial which were shown to be unreliable. Mr Carter wrongly described himself and the applicant, and Mr Karpany, all on the bridge together when the police first came on the scene, wrongly described the applicant getting into a police car, wrongly described his contact with police, wrongly described Mr Karpany having possession of his bag, and as a result of that gave a completely wrong rationale for going to Victoria Square to see Mr Karpany in the company of Father Pearson later that day. This led inter alia to the Court of Appeal placing inappropriate weight on the finding of Mr Carter’s bag by the gardener, Mr Hrybyk.

A related matter is that the Court of Appeal treated Mr George’s – the pie cart operator, Mr George – his evidence as corroborating the drink of water evidence when this Mr George’s evidence involved giving a drink of water to a young First Nations man on a different day and at a different time in the early morning.

Third, in treating Mr Carter’s evidence as relevantly corroborated, the Court of Appeal failed to take into account Mr Carter’s multiple inconsistencies in his out‑of‑court statements. A clear example of this is the way in which Mr Carter’s evidence shifted from his being a hero and having saved a drug addict, to having witnessed a murder. These multiple versions reflect the thrust of the fresh psychiatric evidence, namely, that some aspects of Mr Carter’s evidence may have some element of truth – he witnessed or took part in something on the riverbank – but be unreliable to the extent they are relied upon to incriminate the applicant.

Fourth, the Court of Appeal failed to assess the whole of the evidence in the light of the changed evidentiary landscape. We refer to the principles espoused in Mallard v The Queen and quoted by the South Australia Court of Appeal in the Queen v Keogh. An example of this is the failure to reassess the evidence of Mr George – this is the taxi driver Mr George – his evidence in the light of the enhanced unreliable of Mr Carter’s evidence. A related example is the failure to appreciate the strength of the evidence of Sanderson and others – the members of the prisoner’s action group – and the failure to receive their evidence.

Also related is failure to receive and give weight to the new evidence of Mr George, that his assessment of the dapper passenger’s clothing said by the Crown to be Mr Bromley, the applicant, was not affected in any way by poor lighting or lack of trying to make proper observations. This was obviously ‑ ‑ ‑

EDELMAN J: Mr Keim, what is the defence case that these inconsistencies are being measured against? The defence case, as I understand it, was run on the basis that the prosecution could not exclude accidental drowning. Is that right?

MR KEIM: That is correct. And, also, the defence case was that Mr Bromley was not there, and the evidence of Mr Carter was unreliable at the trial. And this is why we say that the evidentiary landscape and the assessment of what happened at the trial is affected by the new evidence: because the new evidence really undermines in many ways – this is the new pathology evidence – undermines in many ways the finding that there were injuries which could have led to the drowning. It undermines the finding of drowning and there are now a whole scope of defences which were not able to be explored at the trial, including the possibility of natural causes in these circumstances, and the pathology evidence is very strong in that regard.

So, the whole basis of the Crown case depended on Mr Carter’s evidence; (a) in contradicting the taxi driver’s evidence, but also in placing Mr Bromley at the scene. Now, not only is that brought forward strongly into question, but also the evidence that there were bruises, the timing of the bruises; in fact, the most important bruise, a subarachnoid haemorrhage was shown by the Prussian Perl’s testing that that, if it were a bruise, in fact must have happened at least two to five days before the assault.

So, what we say is that a whole, not only are the defences which were run at trial, namely that Mr Bromley was not there and had nothing to do with it, and not only are those defences enhanced, and the prosecution case with regard to those called into question, but the whole landscape is changed and a series of further defences are available and further things which could not not be explored at the trial because of Dr Manock’s evidence where matter‑ ‑ ‑

EDELMAN J: Mr Keim, but they all go to either of your two points of either weakening the prosecution case to the extent that it shows that Mr Bromley was there, or they weaken the prosecution case to the extent that the prosecution was required to exclude accidental drowning?

MR KEIM: Or a series of other natural causes of death, but yes. Natural – accidental drowning was on the ‑ ‑ ‑

EDELMAN J: But was there any suggestion at all at trial that there was any other accident that could have occurred? There was no suggestion that there might have been a heart attack or anything like that.

MR KEIM: There was not, because that was excluded by Dr Manock’s evidence. But what was put to the jury was a rather complicated scenario which tried to fit in with Dr Manock’s evidence, namely that Mr Docoza rolled down the grass, bumped himself on the platform, and then fell in the water, and that he suffered those bruises and suffered the drowning as a result of those events. That was ‑ ‑ ‑

EDELMAN J: As the Court of Appeal points out, one of the difficulties with that is how his shoes managed to – well, first of all ‑ how he became naked from the waist down; how his shoes managed to become detached with the laces still done up from the rest of his body on the bottom of the river; and how the particular bruising came about on his body.

MR KEIM: Absolutely, but in the light of the enhanced unreliability of Mr Carter’s evidence, what is a strong possibility is that there was an assault, that Mr Carter witnessed that assault, that Mr Carter may even have taken part in that assault with Mr Karpany, but that Mr Bromley was not there at all. There is no evidence that places our client and Mr Carter together other than the uncertain identification evidence of Mr George, the taxi driver, no evidence that puts them together on the banks of the River Torrens and no evidence that puts them together at all after the incident.

In fact, on the face of the evidence at trial, Mr Carter’s evidence with regard to the events afterwards are almost wholly unreliable in themselves, so why would an appeal book in the context of the enhanced psychiatric evidence with regard to Mr Carter’s unreliability, consider that Mr Carter should be relied upon in any respect in terms of incriminating Mr Bromley in circumstances where none of that evidence – which seeks to incriminate Mr Bromley – is corroborated in any way.

EDELMAN J: What do you say about the esoteric knowledge?

MR KEIM: The esoteric knowledge of Mr Carter is non‑incriminatory of Mr Bromley. The only suggestion of evidence which was not admissible at the trial, which was incriminatory of Mr Bromley, is something that Mr Karpany said, a disputed statement that Mr Karpany was supposed to have said. But Mr Karpany’s evidence, of course, is not admissible against our client and so that out‑of‑court statement is not admissible and should not have been relied upon by the court.

But the other esoteric evidence ‑ and this goes to the non‑incriminatory evidence that was also relied upon by the court – evidence that Carter and Karpany went to town, evidence that the dapper person paid the fare, evidence that the dapper person had been in gaol, evidence that the deceased was in Hindley Street, evidence of the disputed identification of Bromley by the taxi driver, the finding of the bag by the gardener, the finding of things in the water, the timing of the death, the partially naked body and the three skeins of evidence relied upon by the Court of Appeal, none of them are incriminatory in any way of Mr Bromley.

If you wash your clothes after you have been hiding on a rainy night in bushes, that is not incriminatory, but the Court of Appeal relied upon that as one of their key pieces of rhetoric in defending the decision and in refusing the application.

None of that is incriminatory of Mr Bromley and yet that is what the Court of Appeal relied upon to reject the application in the face of very, very strong evidence. Can I just read to your Honours the passage from Dr Brereton’s evidence which I referred to earlier. This is at page 2401 in volume 6 of the record:

I have attempted to answer this in the question above. Essentially, I believe Mr Carter’s evidence is so inherently unreliable that almost the entirety of his account would have to be corroborated to begin to consider him reliable. Even in these circumstances I would have grave concerns about relying in any significant way on aspects of his evidence that were uncorroborated. For example, evidence from a pathologist might precisely confirm Mr Carter’s account of the nature of an assault but I would still not consider him a reliable witness in identifying who had produced the injuries. Essentially, in practical terms, 1 believe it would be very difficult to reach a point where Mr Carter could be considered as a reliable witness and still require him as a witness other than to strengthen an existing case.

KEANE J: Mr Keim, how should the court below have had regard to that evidence, given that Mr Carter’s condition now is unlikely to be the same as his condition was all those years ago?

MR KEIM: Well, the evidence was based on the diagnosis at the time and it was based on the records which were available to the doctors, and so that evidence is not evidence as to what Mr Carter’s condition is now. That evidence directly addressed Mr Carter’s reliability or otherwise at the time of the events which were in dispute in the trial and at the time of his giving evidence. So, the fact that he may be a different person now, he may be more or less healthy now, that is not what the focus of the medical evidence was. The focus of the medical evidence was his condition at the time, his lack of reliability at the time, so it was directly relevant.

What the Court of Appeal said – and it was almost as if they were trying to get around the evidence – they said, well, all of the psychiatric witnesses said that it was possible that Mr Carter could give reliable evidence, and that just does not come to terms at all with regard to the passage that I have just read out from Dr Brereton’s evidence, which was held by the other psychiatric witnesses; his is just the most clear articulation of that point. Yes, he might be reliable occasionally but ‑ ‑ ‑

EDELMAN J: Mr Keim, given the core of the expert evidence that it is now recognised that a core feature of schizoaffective disorders is suggestibility and secondly that we cannot any longer accept that there is a clear distinction between delusional beliefs and memory of factual events, how does that fit with the conclusion that a person with a schizoaffective disorder is nevertheless capable of giving reliable evidence which the experts seem, nevertheless, to accept?

MR KEIM: Well, their opinions are based on their clinical experience with many people suffering the condition and the core of their opinion is that it is possible that they can give reliable evidence, but you cannot tell without a third-party confirmation of that evidence when they are reliable and when they are not reliable. And that was the exact thrust of the passage that I read from Dr Brereton. So, they do not always get it completely wrong, but you do not know when they have got it right, and there is enough ‑ ‑ ‑

EDELMAN J: But Mr Keim, does not that by definition mean, from a court’s point of view, they can never give reliable evidence because, if the court cannot tell when their evidence is reliable and when it is not reliable then, by definition, it cannot be reliable. It could only be the corroborating events that serve the purpose of establishing the facts?

MR KEIM: Exactly, your Honour, and that is what Dr Brereton says in the very last sentence. He says the evidence is no use except to reinforce an existing case. So, it can only confirm stuff that the court already knows and so, in those circumstances, Mr Carter’s evidence was unable to assist the jury in this case.

EDELMAN J: Was that proposition common to all of the experts?

MR KEIM: It was, your Honour. The experts were all asked questions in cross-examination. Is it possible that the witness can give reliable evidence, and, in each case, they said yes, but what the report said and what their evidence in‑chief said was, you do not know when that is. And Dr Brereton has expressed that really, really clearly. So, there was no difference of opinion between the psychiatric experts with regard to that question of Mr Carter’s reliability.

In fact, both in the psychiatric and pathology field each of the experts were called by the defence but in each case one of the experts had been briefed and engaged by the Crown and there was no difference between the evidence of the witnesses who were engaged by the Crown and those who were engaged by the defence, and of course that just shows how properly the lawyers acted in those circumstances, and the experts.

KEANE J: Mr Keim, your time is not up. That was the orange light.

MR KEIM: Yes, your Honour. I will just mention as quickly as I can the other points. The fifth point was that the new pathological evidence was accepted by the Court of Appeal as identifying three challenges to the evidence given by Dr Manock.

Those three were that: diatom studies and haemolytic staining of the heart identified drowning as a definite cause of death – that was completely rejected; that the deceased was almost certainly unconscious at the time of drowning, based on the absence of water in his stomach – both the methodology and the timing were rejected; and the various injuries to Mr Docoza were indeed injuries, as opposed to artefacts of putrefaction and that they occurred close to the time of the death and definitely within 24 hours prior to the death. That was rejected, particularly with regard to that injury under the forehead which I mentioned earlier, that that was shown not to have occurred perimortem. That was shown by the presence of haemosiderin to have occurred at least two days earlier, which was really a very part of the Crown case.

One other point that I should mention is not only that all of the new pathological evidence disagrees with Dr Manock’s finding that the unambiguous cause of death was drowning; Professor Thomas, Dr Collins, Dr Michael Lynch and Dr Pluekhahn – for example, Dr Thomas states that there was insufficient evidence to exclude death by natural causes so as to diagnose death by drowning. Dr Collins said that cause of death should be unascertained. Dr Lynch, cause of death was unascertained.

The new pathological evidence also undermines the credibility of the way in which Dr Manock came to his findings. The new pathological evidence therefore has the – and that is my time, your Honours.

KEANE J: You can finish your sentence, Mr Keim.

MR KEIM: The last matter, your Honour, was that Dr Manock’s evidence of finding bruising to the carotid artery was significant and prejudicial at the trial, and that was also completely rejected by the new pathology evidence. Thank you, your Honours.

KEANE J: Thanks, Mr Keim. Yes, Mr Hinton.

MR HINTON: If the Court pleases. The only question of law of general public importance that could be said to arise in this case is whether under section 353A(1), the section appearing at page 304 – red numbers, right corner of the application book – the only question is whether that section would allow the prosecution or respondent to call evidence to establish that it is not in the interests of justice that fresh and compelling evidence be considered on appeal. In my submission, that is the only question of law of general public importance that could arise here. It would only ‑ ‑ ‑

EDELMAN J: Mr Hinton, just before you get to that, at the start of his submissions, Mr Keim said that the applicant has been in prison since 1985 and remains in prison ‑ ‑ ‑

MR HINTON: Yes, your Honour.

EDELMAN J: Was there an order for no parole?

MR HINTON: My understanding is that he has been refused parole.

EDELMAN J: I see.

MR HINTON: I stand to be corrected on this, and Mr Keim might correct me on this, but a factor relevant to that is, of course, he maintains his innocence.

MR KEIM: That is agreed, your Honour.

MR HINTON: Thank you. A non-parole period was set, and it has expired, and he has been refused parole. Fresh – if it assists your Honour, we have capacity in this State to go back and obtain a fresh non-parole period. I am unaware as to whether or not that has been done, and I am equally unaware as to how many applications for parole have been made. But you can make – you can keep going ‑ ‑ ‑

EDELMAN J: Can I just ask one other question about the mechanics of this appeal? At paragraph 509, the Court of Appeal said something to the effect that the material that had been considered was considered in no way less comprehensively than on a substantive appeal. Was that because this appeal or this application for a new appeal was heard and considered as though it were an appeal?

MR HINTON: No, I do not understand that – well, yes, they were both – it was. It was the question of permission and the question of substantive appeal were held instanter. But it was dismissed on the basis of permission.

EDELMAN J: So, both parties were allowed to lead all evidence that they would otherwise have sought to lead on an appeal?

MR HINTON: Yes. Yes. I was dealing with the only question of general public importance before I come to the – perhaps, the questions that my learned friend poses. Now, that question does not arise in this case, largely because it is an appropriate vehicle. Why is it an appropriate vehicle is because in this case the Court expressly refused permission without consideration of the respondent’s evidence.

That is the primary conclusion that your Honours will find the court made at appeal book 233 paragraphs 375 to 377. You will also see it returned to at appeal book 275, paragraph 507. So, just getting rid of the only question of law of general public importance, this would be a poor vehicle to consider it, because it was not necessary to consider it in order to dispose of the case.

EDELMAN J: Do you seek to defend it in any way – that the interests of justice could permit the Crown to have a possibility of putting in whatever evidence it wants?

MR HINTON: We would embrace the construction, yes. If that question was one that found its way before this Court, yes.

EDELMAN J: How could that be so that where the concern of the Court is not hearing an appeal itself but where the concern is whether an appeal should be given – or the power should be exercised to grant a fresh appeal – how could it be a proper construction of the interests of justice for the Crown to lead all its appeal evidence?

MR HINTON: The short answer is, it is clearly a question of construction. It is a novel provision to the extent that it is the second or subsequent appeal and the breadth of that expression “in the interests of justice” is one that would allow the Crown to do so.

KEANE J: The Crown’s evidence might go to showing that the fresh evidence is not compelling.

MR HINTON: That is indeed how it was used in this case, yes. But my primary submission is, this is not the vehicle to deal with that question because of the primary conclusion that the Court arrived at.

KEANE J: Mr Hinton, Mr Keim focussed his submissions entirely, I think, on the point that the evidence was compelling and that the Court of Appeal erred in failing to appreciate it was compelling. Perhaps you should focus on that.

MR HINTON: I understand, I am about to move to that now. And the question is whether or not the conclusions that the court arrived at were attended by sufficient doubt to a warrant a grant of special leave.

My learned friend Mr Keim referred to the two primary bodies of evidence that were relied upon by the applicant – the new psychiatric evidence and the new pathological evidence. He is quite right in his summary of the new psychiatric evidence, and indeed in identifying that there was that reserved position that psychiatrists – five of them – could not exclude the possibility that a person suffering from schizoaffective disorder could give reliable evidence.

Now your Honour Justice Edelman asked my learned friend a question or two about, well, if that is the case, then you have a witness who is inherently reliable? Yes. If that is the case, then you are in the Bromley first appeal to this Court territory where a warning should be given, and a warning was given. If that is the case, then you look to the other evidence to determine to what extent it can show reliability in whole or in part, because of course the jury would be directed in terms of, you can accept the witness in whole or in part. And that is ‑ ‑ ‑

EDELMAN J: Mr Hinton, if one for the moment took Mr Carter entirely out of the equation, what evidence was there to show that Mr Bromley was present?

MR HINTON: The primary evidence to show that he was present was his identification by the taxi driver. Well, your Honours suggest ‑ ‑ ‑

EDELMAN J: On the wrong day.

MR HINTON: No, with respect – I think the taxi driver was the correct day. I think it was the pie cart and the glass of water who potentially got the wrong day. The taxi driver got the right day, but where his evidence – and indeed undertook a photographic identification procedure which he picked out Mr Bromley – but his description of what Mr Bromley was wearing at the time differed to what police officers who came across Mr Bromley on the same day in the early hours of the morning described him as wearing.

Now with respect to those two police officers, they come across Mr Bromley in the more immediate area of the Morphett Street bridge and Festival drive. Festival Drive runs in the east-west direction along the banks of the river and it is between Festival Drive and the river itself that the Crown’s case was that the murder occurred.

So, he is in the vicinity; not shortly before, he is in Hindley Street, which is a very short walk away, he is identified by Mr George, the taxi driver, as being in his taxi and he is in his taxi with two other gentlemen, one another Aboriginal person and the other being Mr Carter – identifies himself as Mr Carter. So, if your Honour pleases, that is the evidence that puts him in the immediate vicinity of the murder.

EDELMAN J: So that is it? It is the identification of the taxi driver, which involved an incorrect description of what Mr Bromley was wearing?

MR HINTON: Well, that is one of the bookends. The other is the police officers that meet him within a very short space of time on the same morning in the vicinity of the Morphett Street bridge. I think we are only talking in the region of an hour between the two, between the taxi driver identifying and the police officers coming across him, so we have a bookend. Do we have anybody who says that Mr Bromley was on the banks of the river with Mr Karpany in the presence of Mr Docoza and Mr Carter other than Mr Carter? No. No.

What the Court of Appeal did here was it identified the four essential propositions that arose from the new psychiatric evidence, and your Honours will find those propositions at application book 149, paragraph 38. Thereafter, it deals with each of the four propositions arriving at intermediate conclusions with respect to each.

Significantly, in dealing with this question of reliability, the court turns its mind to what was the circumstantial evidence that tended to suggest that Mr Carter was indeed a reliable historian, and it concludes at the end of the day that the new psychiatric evidence is not of an order that you can conclude that in the interests of justice it is compelling.

The court then looks at the new pathological evidence. Now, the insurmountable hurdle for the applicant here, insurmountable, is that the defence embraced Dr Manock’s evidence. Can I take your Honours to the appeal book, page 207 in the red numbers, right corner, and to paragraphs 263 to 265? Drowning as the cause of death was accepted by the defence. The defence alternate position was it was an accidental drowning. I say “alternate” because the primary defence was Mr Bromley was not there.

Not only did the defence embrace Dr Manock’s evidence and rely upon it in support of its hypothesis of an accidental drowning, but it relied upon Dr Manock’s evidence about the nature of the injuries that Mr Docoza had suffered in the course of, or as part of, its attack upon the reliability of Mr Carter.

Mr Carter gave evidence that he carried in his backpack a barbell. And he said that the barbell was used by Mr Karpany and Mr Bromley to strike Mr Docoza around the head. Now, Dr Manock gave evidence that, if the barbell had been used in that manner, he would have expected to see greater injuries to the body than he did see. So, with respect to my learned friend, the new pathological evidence purports to abandon the defence case entirely and ultimately run a new case.

Your Honours will appreciate that under section 353A(6), the question of whether or not the fresh evidence is compelling is to be determined, having regard to its probative value, in the context of the issues in dispute at the trial of the offence.

Now, here, death by drowning was not in dispute, it was embraced. Here, Dr Manock’s expertise was not called into question. His observation of the injuries was positively relied upon. So, with respect, the new pathological evidence could not carry the defence application forward and the Court of Criminal Appeal was quite right in its analysis and its conclusion that that new pathological evidence was not compelling within the meaning of section 353A.

If your Honours please, the question of whether or not this judgment is attended by sufficient doubt is one that relies upon an assessment of that area of reliability that all the psychiatrists reserve, an assessment of it having regard to all the circumstantial evidence in the Crown case – including, as your Honour Justice Edelman referred to, the esoteric knowledge point – then the new pathological evidence, of course, is a totally different case. Section 353A was not one created to allow you to run a totally different case, it was a provision, the right for a second or subsequent appeal to determine whether or not there was a substantial miscarriage of justice at the original trial in the context of the forensic dispute as won at that trial.

For those reasons, if your Honours please, in my submission, the judgment in this case is not attended by sufficient doubt to warrant a grant of special leave and the application should be dismissed.

KEANE J: Thanks, Mr Hinton. Mr Keim, anything in reply?

MR KEIM: Yes, please, your Honour. Can I just mention – because it has been raised – I endorse what my learned friend said that Mr Bromley’s difficulties in obtaining parole are related to the fact that he maintains his innocence and has also always maintained his innocence.

In fact – and this is not in the record – it has got nothing to do with bad conduct on his behalf – he is allowed out of the prison to work as a volunteer fire officer for much of the time, so, in many ways, he is a model prisoner – it all relates to the existence of this, which means that, as it presently looks, he will be detained indefinitely.

Can I just say, with regard to the evidence, I agree with my learned friend that in many ways, Van Beelen does provide a good guide to the way in which section 353A should be applied. The one area where there is some ambiguity is what evidence can be called on the topic as to whether the interests of justice should stop the discretion from being exercised.

I should say, it is a very clear – the question of whether the evidence is compellable or not, and whether it should be exercised in the interests of justice, are two quite separate things. The interests of justice do not relate back to the compellability. What Van Beelen was ‑ ‑ ‑

EDELMAN J: Mr Keim, if you do not succeed on the compellability point the Court would never get to the question of interests of justice, would it?

MR KEIM: No, that is exactly right, your Honour, and what we say here ‑ ‑ ‑

EDELMAN J: On the compellability point, what do you say about Mr Hinton’s response to your point about the evidence being – or the fresh evidence being compelling because it strengthened significantly the case that Mr Bromley was not present, and in that regard Mr Hinton referred to the police officers seeing Mr Bromley in the vicinity of the breach within an hour of the events occurring?

MR KEIM: We say that that is very, very weak substantial evidence. There was nothing in the police contact that indicated that he was guilty of a crime. He was dropped off in town by the Prisoners Action Group people who also offered evidence with regard to his clothing. He spent some time there. He said – he made no admissions, he was not arrested, he was not picked up. He was in the general area – that is a piece of circumstantial evidence but it does not go very far at all without reliable evidence from Carter.

EDELMAN J: Is there evidence as to whether he lived in that area?

MR KEIM: No, he did not live in the area. He was driven into town. He had been at a meeting with the Prisoners Action Group people earlier in the night and they dropped him into town fairly early in the morning.

Your Honours, can I have a short extension of time to deal with Mr Hinton’s last point which relates to the way in which he asserts section 353A is restricted by the way in which the case was conducted at the trial? If my learned friend’s construction of this were to be accepted it would completely undermine the effect of section 353A. What we have to take into account here – and this is reflected in comments in cases like Ratten and other cases on just ordinary appeals – what we have to take into account here is that it was Mr Bromley’s case always that he was innocent of the offence and that he was not present at the scene.

So, in terms of what instructions he could give in the conduct of the case, he was restricted by the pathology evidence of Mr Manock, and what defence counsel did at the trial was deal – I think we used this in our written submissions – with the errant cards with which he had been dealt.

Now, the important thing – and this is why I talk about evidentiary landscape and defence options available to the defence that were not available at the trial, it is why those statements of principle are very important.

Once you take away Dr Manock’s evidence, and once you touch away Mr Carter’s evidence, as well, of course, and – Dr Manock’s evidence is crucial in corroborating Mr Carter’s evidence with regard to his description of what happened on the riverbank, once you take away Dr Manock’s evidence, then a whole lot of options are available at the new trial which were not available at the first trial. That is why it is a miscarriage of justice to say, you did the best you could with completely wrong evidence at the trial, you cannot have a new trial now that that evidence has been shown to be unreliable. It just completely undermines the effect of section 353A and is not supported by the authorities with regard to appeals generally or second appeals generally. That is all I wanted to say in reply, your Honour. Thank you.

KEANE J: Thanks, Mr Keim. The Court will adjourn briefly to consider the course it will take in this matter. Adjourn the Court, please.

AT 12.11 PM SHORT ADJOURNMENT

UPON RESUMING AT 12:25 PM:

KEANE J: In relation to this matter, the application for special leave to appeal will be referred to consideration by a Full Court, that consideration being limited to the ground whether the fresh psychiatric evidence is compelling within the meaning of section 353A(1) Criminal Law Consolidation Act 1935 (SA), and whether it was in the interests of justice that it be considered on an appeal.

Now, Mr Keim, that being the course that the Court proposes, how long – and which, in particular means the pathological evidence relating to the cause of death will not need to be entertained as a separate ground – what do you think is the time required to argue the application before a Full Court as on an appeal?

MR KEIM: I would ask that a full day be allowed, your Honour.

KEANE J: You think you can do it in a day?

MR KEIM: . . . . . with the question, how long do we need to prepare?

KEANE J: Mr Hinton, how long do you think the case will take to argue on the footing that we proposed?

MR HINTON: We would have to consider the reports, the oral evidence of five psychiatrists in the light of the transcript of the trial at first instance. I would have thought a day – but you would go over into a second. I am just wondering, what also is exercising my mind is perhaps a question your Honour Justice Edelman put to me, and that is would the grant of special leave potentially exclude a notice of contention ‑ ‑ ‑

KEANE J: Special leave is not being granted. The application for special leave is being referred, referred on the footing that the case would be argued before the Court as upon on appeal.

MR HINTON: I understand. In that case, I would have thought that we would spill into a second day, but we should be able to do it within a day and a half comfortably.

KEANE J: And Mr Keim, are you content with that?

MR KEIM: I am content to adopt that, yes, your Honour.

KEANE J: Very well then. The application will be referred for consideration to a Full Court on the footing that I have stated earlier. The Court will now adjourn until 12.30 pm. Adjourn the Court, please.

AT 12.29 PM THE MATTER WAS CONCLUDED