The 'edited version' of the Crown's case is expected to be added within the next day or two on the NetK Bromley Homepage (An invaluable source of materials on the case);
http://netk.net.au/Bromley/
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Networked Knowledge can be accessed at:
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17 May 2023 - Bromley v The King [2023] HCATrans 62:
Notes and extracts from the transcript. [Comments in brackets] (Italicized)
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[Mr Bromley was convicted for the assault and drowning of Stephen Docoza in 1984. The main issue for this appeal is with regard to the evidence of Mr Carter who claimed to be an ‘eye-witness’ to the events which led to the death of Mr Docoza. He was suffering from a mental impairment at the time the incident occurred which led to him experiencing hallucinations both visual and audible. The adequacy of his evidence was an important element of the previous appeal and the extent to which it was corroborated by other witnesses. Summaries of the various expert reports - the NetK critical evaluation of the appeal court judgment - links to the written submissions to the High Court are available at theBromley Homepage. This note provides a simplified version of the hearing. The references have been significantly edited for brevity. Do not quote without reference to the full text of the transcript.]
Stephen Keim SC and Samuel Lane for Mr Bromley
[Preliminary note: Expert reports on the appeal stated that the cause of injuries and the diagnosis of drowning by Dr Manock were incorrect. That because of the inadequacy of the autopsy, the cause of death should be stated to be ‘undetermined’ and a possible death by natural causes could not be ruled out. The High Court in this matter stated that the reference to the Full Court of the High Court would not address those issues. It also made it clear that on this hearing, leave to appeal to the High Court has not yet been granted. Previous judgments of the High Court have made it clear that before leave is granted, the ‘jurisdiction’ of the High Court has not been invoked.]
Gageler Acting Chief Justice: paragraphs which attempt to address the “new pathological evidence” will not be received. We are concerned, at least initially, with the new psychiatric evidence as summarised by the earlier appeal court. [p 146 of the appeal court judgment]
Steward J: the Full Court states that: “Accounts given by persons suffering schizoaffective disorder may not be reliable absent independent corroboration”. It is my recollection that some of the experts were of the view that the account would be unreliable unless corroborated. In particular, Professor Coyle says: “There is simply no way of knowing what he claimed to have seen did occur or whether it was a hallucination.” It seemed a bit stronger than a “may”?
Mr Keim: I am indebted to your Honour for that assistance. Your Honour refers to Professor Coyle.
Steward J: Just as an example of someone who is a bit stronger than “may”.
Mr Keim: Dr Brereton’s evidence is that a person suffering from a schizoaffective disorder is very likely to be unreliable and that person’s evidence would not be able to be relied upon unless it is corroborated in almost every respect.
[Dr Brereton was the Crown’s own witness who the Crown refused to call on the previous appeal. He had to be called by the defence. When the defence applied to have his costs paid by the Crown they refused.]
Gleeson J: Is it agreed that he was psychotic at all relevant times?
Mr Keim: Not agreed. he was very ill for at least four weeks beforehand; and his rehabilitation took, either three or four months. Dr Sugarman’s evidence goes to the suggestibility point – there are discrepancies about whether he met Bromley in the pub or went with him in the taxi. The evidence of George the taxi driver is really important – heidentifies Bromley as the ‘dapper’ person in the taxi - the only person to corroborate Carter being incriminatory of Bromley – that only comes from the second attempt of a photo ID. Carter’s evidence about meeting Bromley on the bridge and marks on his clothing is very weak.
George’s evidence about ‘the dapper person’ is so strong, that Bromley was not the person who got in the taxi or the person on the riverbank – Bromley was not the person wearing the light suit, the dapper man, who accompanied the others to the riverbank. Carter’s description of the movements of the taxi differ markedly from the directions given by George the taxi driver. Carter tends to get key aspects of the detail wrong.
Edelman J: Your submission about the errors by Carter in the direction of travel of the taxi were in cross-examination – was it part of his evidence in chief?
Mr Keim: I do not think the Crown went to it.
Gleeson J: Is this evidence affected by the expert evidence about suggestibility?
Mr Keim: It is. Dr Sugarman points to many examples where Carter replies ‘I don’t know’.
The proposition is that, even with having created some memories from taking prompts, either from the hospital staff or the police officers, he has been able to fill in gaps, but where he has not been able to fill in the gap or has not been able to fill in the gap fully, there are still things that he gets massively wrong.
There is an improbability with regard to Carter’s evidence as a whole because of this particular behaviour that is described. The evidence is that Carter goes across to the dapper person who, on the Crown case, is Bromley, and he gives him a big hug. The evidence with regard to the extent to which Carter knew Bromley is that he had met him once, three years earlier, in 1981. It would be odd for Carter to greet such a person so effusively.
Now in 1981 Bromley was in jail so the detail there could not be right. Carter says Bromley (the ‘dapper’ man) was “the drunkest” of the four people (at 3.30am). Yet the police officers who came across him shortly after (at 4.25am) perceived him to be quite sober. The police officer said he (Bromley) was ‘definitely not’ a ‘dapper’ man and he was not affected by liquor. They thought Carter was affected by alcohol which may have exacerbated his other problems.
Gageler ACJ: Is there any suggestion that the alcohol may have affected the form of the greeting that you took us to before?
Mr Keim: No.
Edelman J: Is there any reference in the expert evidence to the effect of alcohol on schizoaffective disorders?
Mr Keim: No, but interesting that he has described one person as drunk and yet he himself may have been affected by alcohol.
Gleeson J: Was there evidence about whether Carter was suffering from some form of mood disorder, like mania, at the relevant times?
Mr Keim: Yes. The schizoaffective disorder includes as one of its symptoms or “presentations”, hypomania. The expert evidence is that he exhibited mania or manic behaviour. Witnesses described him as jumping around a lot.
Gleeson J: Throughout the time that he was said to have seen the murder, and at the times that he was giving evidence or giving accounts of what he had seen?
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Mr Keim: Sugarman emphasises how he remained very ill from the hospital notes for months afterwards, as well as beforehand.
Edelman J: Could you point to any aspect of the expert evidence as to whether or not hypomania is something that comes and goes, or whether it is, effectively, a permanent condition?
Mr Keim: The thrust of my answer is his condition was schizoaffective disorder, and he was very ill with that disorder from four weeks before these events until months after.
Edelman J: I understand that but my query is whether hypomania is something that is permanent or whether it is transient?
Mr Keim: Yes, on mood disorder, there is a comment by Dr Sugarman with regard to one of the quite earlier nursing notes saying, he was quite happy. Dr Sugarman says that that was an inappropriate mood for somebody who had just claimed to have witnessed a murder quite recently.
Gageler ACJ: Mr Keim, this part of your argument is directed to showing that aspects of Carter’s evidence were objectively unreliable. Is that right? Is that what we are doing here? Or are we doing a number of things?
Mr Keim: We are doing a number of things, but that is the thrust. He is unreliable here because he wrongly recalls that Bromley was very drunk, when, in fact, there is objective evidence that he was not. If Carter was not wrong on that, then that is further evidence that Bromley did not get into the taxi.
Edelman J: In other words, that it was a different person?
Mr Keim: A different person, yes.
Edelman J: So, he is either wrong or he has identified the wrong person?
Mr Keim: Yes it is another reason why Bromley was not down on the riverbank that morning. Now, I am going back to the journey down Hindley Street. There is quite a marked discrepancy between what happened after the stop at Jules Bar.
George and Carter give conflicting evidence about which bar they went to for more wine - the two witnesses agreed that it was the dapper person who paid the taxi fare. We say there are quite significant differences between Carter’s and George’s recollection. They involve the sort of detail that a suggestible person, as described by Dr Sugarman, might believe strongly,
notwithstanding that those memories had been formed by Carter in the process of memory consolidation, or confabulation.
Edelman J: What is the error or confabulation that you are referring to?
Mr Keim: Well, all of those factual matters: stopping at Martinas, and not Kats, in that wrong road block; agreeing that he went back in to buy a flagon, but not remembering that he bought one. Everybody abandoning the taxi at that point and going down Register Street when you can probably infer from George’s observations that the group probably travelled all the way to West Terrace before they turned North.
Edelman J: Some of the details may just simply be the sort of discrepancies or errors you would expect with any witness giving evidence as to precise routes and precise locations. Others may be more significant?
Mr Keim: Yes, we say the accumulation is important.
Edelman J: But beyond the matters that particularly affect Bromley, there are other matters that are obvious – hallucinations, creations, seeing the devil at a time and so on. You are not relying upon any of those?
Mr Keim: No. One of the things that Dr Sugarman says is that many of the grandiose things, evidenced by other people’s evidence – for example, at the beginning of the taxi journey he tells Mr George that he plays for Port Adelaide. But he is cross-examined with regard to a lot of delusions that are otherwise proved in the evidence, and he cannot remember those.
Dr Sugarman says that that is significant in terms of his memory formation and the fact that he cannot remember those things. But the devil comes from him, I think, in most respects, and he was able to remember that.
You would certainly accept George’s evidence as to where the taxi finally stopped because he was concerned about being paid and he stopped at the taxi depot because he thought he would have support there if there was an incident.
Gleeson J: Mr Keim, can I just interrupt you. It says that Mr George gave evidence that he knew Mr Bromley personally?
Mr Keim: From a long time ago, yes. We will refer to that when we come to the vulnerability of the photographic evidence, that he was almost a stranger. I do not think it assisted in identifying him, and he has confined himself to the appearances of the photographs. We do not make anything of it one way or another, but it may have triggered him, but it was
obviously a long time ago and there is no suggestion that he identified him as Mr Bromley in the taxi itself.
Part of the Crown’s circumstantial case relies on a suggestion that it was odd that Bromley told the police later that night that he had been robbed but still had $60 in his wallet.
Now, we say, it is possible to be robbed where somebody grabs some money from your wallet and just goes with what they can get. But it was $60 in his wallet in the form of three twenties. As we understand the Crown’s submissions, that was suggested to be odd and may have in some way not been a correct description of what he had been doing earlier. However, on the Crown case, Bromley had received $8 or $12 in change in the taxi, and then had gone off to the parklands, murdered somebody, and then gone back up to where he is sighted by the police, and shortly thereafter, his wallet is searched.
The point that we make is that the fact there is three even twenties in his wallet is another reason why he was not the dapper person in the taxi, because if he had been he would have had $68 or $72 or $48 - something that either had an eight or a 12 in it. He had not gone anywhere to spend the money, we know, from the short amount of time available. And, in fact, part of the Crown case is he is up on the bridge near where these events took place, so it is shortly thereafter.
So, we say it is an important factor that he paid the cab – or the dapper person paid the cab, was given $8 or $12, but Bromley, when he was questioned – and his wallet searched – did not have anything that included $8 or $12 – he had three even twenties. That that is an important factor that counters a circumstantial case, and very strongly indicates that he was not the person in the cab. He was described [by Mr George] as follows:
Q What about the accused, Mr Bromley?
A He was very smartly dressed – And he describes in detail:
light coloured suit, white tie, black shirt: and a hat. In fact, very well dressed. The suit was well tailored.
Mr George says: it was a modern hat –
a dapper type of a hat. It wasn’t a wide brim sort of thing but it was very fashionable.
Mrs Bromley said that Derek had a brown woollen hat – she had never seen him wearing it. The police officer said Bromley had trousers and shoes quite scruffy dressed.
The Crown’s case in their written submissions was that Bromley was dishevelled when spoke to the police officers.
Mrs Bromley described the clothes he was wearing that night:
he was wearing brown corduroy trousers, a checkered western style shirt which was thin, blue and white sneakers and my husband’s blue woollen jacket, a new one.
He was not only not dressed in a dapper way, but he did not really have a wardrobe, as they had gone shopping for clothes for him that day. The point that we are making is he was never going to resemble the man that got into the taxi at that stage of his life.
The trial judge said:
We probably put it a lot higher than that. The court of appeal stated:
The unanimous guilty verdict can only be explained on the basis that the jury found beyond reasonable doubt, on the basis of all the evidence, that the Aboriginal man with the deceased in Hindley Street . . . was Bromley, and that Mr George was mistaken concerning his description of Bromley’s manner of dress.
Gageler ACJ: Can I just ask you; do you accept that?
Mr Keim: Yes, we do. But the new psychiatric evidence stresses that Carter’s evidence can only be accepted on those points on which it is corroborated - unless it is corroborated on almost everything - we say that changes the evidentiary landscape. [This point is picked up from the Keogh appeal]. We say you cannot use Carter’s evidence here - it is not corroborated on the key points to throw out the evidence of George. That is the basis, on its own, by which the new psychiatric evidence is compelling. It is compelling because, in the face of that evidence, it is simply unsafe to reject Mr George’s evidence on the basis of the uncorroborated evidence of Mr Carter.
Gageler ACJ: You are talking here about the description of the man who got into the taxi?
Mr Keim: Yes. I am saying George’s evidence makes it clear that the person who got into the taxi was not Bromley that night. You cannot use Carter’s generally unreliable evidence to reject George’s evidence on those matters.
If you think George might be right, that the man who got into the taxi was
wearing white shirt and white trousers, black shirt and tie and a hat with a
brim, it must be a reasonable possibility that the man who got into the taxi
was not Bromley.
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Jagot J: How does that fit with Mr George’s identification, which you are coming to? So, you are saying you cannot reject that bit, but you reject the other bit?
Mr Keim: Yes, your Honour. Because they are two different categories of evidence. Jagot J: Right.
Mr Keim: George did not recognise Bromley as the person he knew years ago on the night. Identifying particularly a person from a different culture to yourself from other people of that other culture in a set of photographs is as unreliable as any form of photographic identification.
Mr George has given honest evidence with regard to both points. He has honestly done the best he can. On the second attempt, he picked out Bromley who, he says was the tidiest person in that group, in the photographs. That is his evidence, but it is weak, like all photo ID evidence is.
The passage in the judge’s reasons, and the passage in Domican stresses how many injustices result from relying too strongly on identification evidence. But his clothes stood out like a neon sign, and they are just things that you could not mistake between the two – the two versions of Bromley that night, in terms of clothing, you just could not mistake them. So, we say, what the jury was asked to do and what, on the judge’s instructions, they did do is not able to be replicated in the face of the new psychiatric evidence. We say that is a very important point.
Edelman J: The evidence about lighting and so on is part of the trial record. You are not precluded from taking us to any part of the trial record.
Gageler ACJ: The lay evidence does not feature in the reference. [It being restricted to the significance of the new psychiatric and psychological evidence]
Mr Keim: I now wanted to go to the photographic identification. There is a delay of between three and four weeks, 25 days. How long after the event is relevant with regard to identification; that is a moderate period. The Crown refers to the black and white photographs which were looked at a couple of weeks before then, and the witness was unsure and he asked for some better photographs to be shown. He says he was not sure about two black and white photographs and the Crown asked him to pick out the two photographs between which he was not sure.
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He then says: No, I would say at that stage that I thought they were both possibly the chap that I indicate. He was tossing up between a photograph of Bromley and the other one was not a photograph of either Karpany or Bromley.
He was then asked:
When you looked at the coloured photographs, you picked out a photograph of the man we subsequently found to be Bromley. He said: That’s correct.
Gageler ACJ: What is the point we are getting out of this?
Mr Keim: That photographic identification, especially on the second occasion, when you have to make two attempts to get there, is, as the authorities suggest, difficult; it can be unreliable.
Edelman J: Is this the only evidence of the photographic so-called line-up, or was there more detail about how many photographs were contained in the black and white array, how many were contained in the colour array, what the overlap was between the two of them, what the delay was between the showing of each and so on?
Mr Keim: Yes. The timing is documented. There was about two weeks between the black and white photographs and the colour photographs. There was a problem with regard to the black and white photographs in that Mr Karpany was on the photo board and that is why that agreement was made, and only the two photographs that he could not decide between went into evidence – from the black and white photographs.
Edelman J: But we do not know how many were in the set of either?
Mr Keim: We do not know, no. Mr George knew Mr Bromley because he knew him personally from a long time ago. But he agreed with the proposition that:
A I would say certainly on this photograph the tidiest of the lot of them, yes Q The only one who could get anywhere near being described as dapper.
A The only one anywhere near to the man I saw, yes.
We say that the clothing description is much, much stronger evidence which you cannot go past. The photographic evidence is classically dangerous to rely upon unless there is strong other evidence as Domican says Nevertheless, the seductive effect of identification evidence is that it has so frequently led to proven miscarriages of justice. We say the identification evidence does not restore the balance between the unreliable Carter and the very reliable George when it comes to the clothing.
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Edelman J: It is a curious type of identification evidence, which is identification evidence in some ways tainted by recognition?
Mr Keim: Yes.
Edelman J: It is not recognition evidence, and it is not pure identification evidence, either.
Mr Keim: Yes, that is right. The fact that he had seen this person, he had known this person long ago, may well have drawn him to that photograph.
George’s recollection of clothing from that night, although not perfect, was impressively accurate in terms of what the deceased had been wearing. It says something about the Crown case that George, who had a good eye for colour in clothes, mistook – and this is what he had to do to be wrong – this is what he had to do for Bromley to be the person who got into that taxi – he would have had to mistake a light shirt for a dark shirt; no tie for a white tie against a dark shirt; a blue jacket and brown corduroy trousers for a stylish well-cut white suit; and a brown almond cheeseboard flat cap – which was not being worn – for a white-brimmed hat of felt or cane. We say that is a very, very long bow.
The Crown also relied on the coincidence of references in the taxi to the dapper person having just got out of gaol. On this point, George’s evidence was imprecise. It appears he was not interested in the discussion. We say that he had no reason to believe that it was indicated by anybody that the dapper person had been released that day. It just might have meant anytime within the last week or month.
In 1984, Indigenous incarceration was disproportionately high, as it is today. It would not have been usual for more than one Indigenous person to be released on the same day, let alone in the same month. The coincidence about somebody having been in gaol recently is not sufficiently strong evidence to somehow prove that Bromley was the person in the taxi.
There is evidence from Carter that Bromley kicked and punched the deceased all over the body and references to blows he gave with the barbell and Docoza being in the water. There may have been some suggestion that Carter was showing some distress in giving his evidence and the fact he may have been standing up and holding a weight.
Gleeson J: At one point the judge is asking the cross-examiner to “exercise restraint” in the context of the witness having seen “he sees the devil” and he “has a long history of illness”?
Mr Keim: Yes.
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Steward J: And Mr Borick give some explanation that they tried to contact Dr O’Brien, and Dr O’Brien said there was: a risk that under fairly close cross-examination . . . it might be damaging to the witness’s health in that sense?
Mr Keim: Yes. There was concern obviously felt by everybody at the Bar table and the judge.
Jagot J: He had been made to hold the weight up. That might have had something to do with it?
Mr Keim: Yes. I do not know that he held it up for all of the next 20 questions, your Honour. Jagot J: No. I was just saying that he could not hold it up, obviously.
Mr Keim: It was about 30 pounds, so fairly heavy. The defence counsel sets out a lot of Carter’s evidence with regard to the events on the riverbank. Dr Manock’s evidence with regard to this:
Q I put it to you quite specifically that the injuries you saw on the body are totally and absolutely inconsistent with the description the witness gives.
And Dr Manock says:
I would say so yes.
So, Dr Manock had expressed some doubt about whether the state of the body was consistent with being hit with a very heavy weight like this. He did make some comments about “glancing blows”. Defence counsel seeks to deal with that evidence by putting the whole of Carter’s evidence on the point to Dr Manock, and Dr Manock says, well, his evidence cannot be right.
So, that is the major contradiction about the events on the riverbank. The other one is the state of undress of the body. Mr Carter said that the deceased was stripped naked, and the deceased’s body was found with all his other clothing on, and naked from the waist down. So, that is a second major contradiction of Carter’s evidence at, you might say, the most crucial time.
Gageler ACJ: Was a barbell found at the scene, or somewhere close?
Mr Keim: Yes. The Court of Appeal approached the matter that there was evidence that something of the nature described by Carter happened at that spot on the riverbank, because they found a barbell and they found shoes. The shoes, belonged to the deceased, and the barbell, belonged to Carter.
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The Court of Appeal says Carter is corroborated, even though he is contradicted at the same time, by the fact that the deceased was naked from the waist down, and draws a number of inferences from that.
The Court of Appeal also draws something about the likelihood of a sexual attack from the fact that the shoes had been removed with the laces still done up. I am sure a lot of my grandchildren do not undo their laces when they take them off. We say it may corroborate his statements that there were events involving Docoza and Karpany and Carter on the riverbank, but they do not go beyond that. To the extent that there was an attack, even Dr Manock’s evidence does not go anywhere near the attack that Carter described.
The Court of Appeal actually said, citing a Crown submission, Bromley had Docoza’s blood on him. None of Dr Manock’s evidence actually suggests that there was any bleeding. His evidence is about subdural haematomas, no bruising on the forehead, some other bruises on different parts of his body which may or may not have been perimortem.
The kind of circumstantial case where the Crown relies on blood? We say, if you hide in a prickly bush it is not surprising that there may be some blood on the back of your hand, or you might have wiped your hand on your shirt. Bromley said he had been involved in a fight and he had been robbed. The Crown says, that proves he was bashing up Docoza on the riverbank. But it is much more likely if you have a fight in the pub that you might get blood on you, that somebody might get a split lip or a blood-nose or something.
There is nothing in any of Carter’s descriptions which indicates that Docoza fought back. There is nothing to indicate that either Carter was bleeding or Bromley was bleeding. The Crown’s reliance on these things is relying on snippets of very weak evidence. We say that the circumstantial case is very weak.
This is part of Dr Sugarman’s evidence with regard to suggestibility and the way in which Carter’s version of events became more coherent. Carter took the police to the location, and police divers searched the area and they found those things. That does corroborate Carter, to the extent that he was on the riverbank, the deceased was on the riverbank and some kind of incident happened there. It certainly does not corroborate an attack with the barbell, because Dr Manock’s evidence does not support that. It does not, in any way, corroborate the suggestion that Bromley was there.
Edelman J: So, the medical evidence did not corroborate that an attack occurred with the barbell? Is that what you are saying?
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Mr Keim: Yes. Dr Manock’s evidence did not corroborate an attack with the barbell. His evidence is if I get hit with a 30-pound barbell, it is going to come out my skull on the other side. Dr Manock agreed in his evidence in-chief that it did not meet the descriptions that the witness had given. He sort of qualified that by saying, maybe the glancing blow would not do quite as much damage.
Steward J: Can you remind me, what was Carter’s explanation for why he was carrying a dumbbell around in his bag? He may not have given one, but - - -
Mr Keim: No, no, he did, your Honour. Steward J: - - - I thought he did.
Mr Keim: He said he did exercise, and I think he may have said that he was planning to go to Victoria Square and do some exercising there.
Steward J: In the middle of the night?
Mr Keim: Not sure that it goes that far, your Honour. Edelman J: And he showed the dumbbell to the taxi driver? Mr Keim: He did, yes.
Steward J: All right. It is what it is.
Mr Keim: It may well be part of his grandiosity, that he exercises in public - he said to the taxi driver that he plays for Port Adelaide. There a whole lot of grandiose symptoms. But the whole aspect of the contents of his bag are in the evidence, and, you know, books, reference books, that he probably never read, collections of tablets that he stole from his mother, tablets that he claims to have given Docoza, supported a little bit by the toxicological analysis evidence of the deceased.
Edelman J: Where was the dumbbell found by the police?
Mr Keim: It was found by the police divers, yes. A dumbbell and a pair of shoes has been thrown into the water at some stage, and a body has been found, naked from the waist down.
In reference to a question by Gleeson J. Dr Barratt’s report, provided on the first day of the trial states, Carter’s mood at the time of admission (the day of events on the riverbank) sets out some of his delusions. He was noted to be extremely elated, euphoric, and expansive. This constellation is commonly referred to in psychiatric terms as a hypo-manic phase of a psycho affective disorder.
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Steward J: Can I ask, just before you do so, this document that you just read from, that was not before the jury?
Mr Keim: No, it was not. It was provided to defence counsel. Steward J: I see. But it was not admitted into evidence in any way?
Mr Keim: No, it was not. It was not. I think the general proposition probably is that it guided the conduct of the trial.
Steward J: Before the judge, in some way? I am just trying to work out what its status is.
Mr Keim: It was certainly discussed with the judge, because I think the defence counsel were waiting on the report. They did have another doctor sitting in the back of the court, but he was not called.
Steward J: All right. Thank you.
Mr Keim: There is a statement and a report which states:
The illness was difficult to control. The patient remained hypomanic for several weeks and could not be adequately controlled –
The medication is set out. Then the last sentence is also relevant:
Indeed it was not until the end of June that his mental state had improved to the extent that we were able to commence the process of trial leave on weekends. He was not discharged until August.
None of this was in evidence at the trial. It was material the experts used in compiling their reports.
Gleeson J: Both of those documents set out a history that Mr Carter reported seeing two Aboriginal men beating up a drug addict and throwing him in the river?
Mr Keim: Yes
Gleeson J: Is there an agreed fact as to the identity of the second Aboriginal man?
Mr Keim: No. Dr Furst had expressed the view he was not fit to have any leave and it is also reasonable to conclude that he remained psychotic and manic for at least several weeks after his admission – Dr Hook had said his family had reported a 4-week deterioration where he was becoming increasingly hyperactive.
Gleeson J: Was the medical evidence at the trial that Mr Carter had schizophrenia, as opposed to schizoaffective disorder?
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Mr Keim: There was no psychiatric evidence addressing it, but that seems to have been the way in which it was approached.
Gleeson J: And is that a matter of significance in your argument today?
Mr Keim: The fact that it was a schizoaffective disorder is important, which goes to Carter’s suggestibility and his lack of reliability except where he is corroborated - with the knowledge that has been acquired since 1984. The content of that psychological evidence is what the [appeal] court should have acted on, and which it really rejected. It came to its own medical opinions.
Steward J: You say new psychiatric evidence. It is the case, is it not, that there was no psychiatric evidence before [in evidence at] the trial?
Mr Keim: That is true. There was certainly none brought by the defence, and none of [Dr] Barrett’s material was put before the court. Mr Borick’s address [stated]:
Around 4am the police officer sees Bromley on the bridge and by the time they turn around he disappears – they catch him in the headlights and he runs away. He is found in a prickly bush near the ramp.
Gageler ACJ: What are we getting out of this? Just so we can approach it with the appropriate sensitivity.
happened. We can compare that with what Carter did – what Carter says happened. Carter says he came up on the bridge, he saw Karpany and Bromley, they walked with each other, he gave them a drink – [he says]
– and he is also spoken to by the police.
An important issue that comes out of this is his evidence that Karpany took his bag is just wrong, because he had his bag when he was talking to the police officer. He also saw Bromley being pulled out of the bushes; that is accurate. And he may have also heard Bromley being interviewed and give his name as well.
ou saw some physical manifestations of it with his hands above his head
all the time. You saw it later one afternoon when he was getting obviously
tense and the trial stopped a little early. You have not seen him with the
devil talking to him.
Mr Keim: | We are getting the truth, because the police officers are reliable witnesses of what |
Karpany had my bag, he would not give it back to me – just then, the police
drove up beside me and said, have you seen two Aboriginals with coats on,
but they had run away then
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Edelman J: Which bit is inaccurate, apart from the bag?
Mr Keim: All of the stuff about him seeing Karpany and Bromley on the bridge is totally inaccurate, his conversations about that, and the water and stuff, is inaccurate. The police did not talk to him on the bridge; he approached them at the top of the ramp, so that is inaccurate. They did not have that conversation with him.
Carter’s version is quite different. This is what contradicts Carter’s version. Carter says after he has gone to the pie cart, he goes up the steps onto the bridge. When he does that, he sees Karpany and Bromley coming out of the bushes. He says they walked towards each other, they have a conversation and there is that interaction on the bridge. The reason why we say that could not have happened is there is just no time for it.
Bromley is already on the bridge by himself. He has not come up with Karpany. Carter is nowhere to be seen when the police come back the next time. They see Bromley by himself and then they see him again by himself and then they see him running north and he hides. So, there is no break in those events from what Carter said to happen, to have happened.
Up to that point in time, Bromley has shown no sign of being in trouble with the police or having a guilty mind, or anything like that. And even when he disappears there is nothing to suggest that he has run away or is hiding. The later evidence suggests that he has stepped off the footpath into the bushy area at the top of the embankment. He may have gone off the bridge to heed the call of nature, and by the time the police officer sees him, he is not running away, he actually seems to be curious about the police and coming to look at them. So, again, we say, at that point in time, there is no sense of guilt or trying to run away.
Gageler ACJ: It would be helpful if you could distinguish the evidence from the speculation, I think.
Mr Keim Sorry, your Honour. It is from there that he runs away to the north. He has crossed the road – the evidence says there’s a fenced in compound just raised from the ground that comes up the side of the bridge. He was standing in the corner of the compound. He appeared to run off in a northerly direction through the bushes. He runs off when all the lights are shining on him, and that is when he runs away and hides.
Edelman J: The purpose of all of this is just the short point that that is inconsistent with Carter’s account.
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Mr Keim: Yes, the short point is to show that what Carter says about this period of time cannot be right. The police describe their interaction with Carter – his airways bag, the conversation, the books, and he continued along the footpath. Just after that, Bromley was located halfway down the ramp on the northern side, hiding in a prickly bush. The police officer says, come out, and Bromley says he cannot, and the railway station officers help him out.
The bag that was in court was found in the public gardens by a gardener. Carter said he hadn’t taken his bag with him that Karpany had it and he went to Victoria Square the next day to get it back. The police officer said that Carter appeared to be intoxicated, and the reason that he gave for that was Carter’s behaviour – so it may not have been intoxication. Carter walked up to him and introduced himself and showed the police officer a book and said that he was going to school.
Carter claims to have witnessed an assault – which turned out to be a deadly assault – he runs into police officers, and he talks about a book and going to school? The obvious thing he would have done, even if he was in quite a psychotic state, would have been to mumble a whole lot of stuff about people killing people on the bank of the river. He does not do that. And he is cross-examined about why he did not do that, but the explanation is not very good.
Steward J: Can I ask a question about that or related to that? In the evidence, I think of Mr Carter’s sister, it might be Jennifer Carter.
Mr Keim: Yes.
Steward J: She says that the first time she was told about an incident was from Mr Karpany. I think.
Mr Keim: Yes. I think she might have also had a conversation with Carter as well.
Steward J: Yes. True. But Karpany said on that first occasion that he saw Mr Carter hitting the victim with a dumbbell.
Mr Keim: Yes.
Steward J: Was Carter ever a suspect?
Mr Keim: Apparently not.
Steward J: Is there a reason, do we know why?
Mr Keim: No. Dr Sugarman speaks about Carter said things in hospital that suggest that he is afraid that he is not being believed. He wants to join the police now, but he cannot cheat them.
An inference is open that Carter was not just traumatised but was feeling guilty, either because he failed to stop some aspect of the attack or because, as Karpany said, he joined in. And that would explain him naming somebody else as the accomplice of Karpany. That would explain a lot of his subsequent traumatised reaction.
The police officer obtained particulars. He was asked his name which was given as Derek Bromley, his age was given 28 years, his address was given – there was a conversation about what he was doing in the bushes: “
A He asked us to give him a go as he had just been released. Q Did he say from where.
A From gaol.
Q Did he say when.
A Earlier that day.
He made reference to the fact that he had been robbed.
The police officer said he made reference to the fact that he had been robbed – he didn’t know how much he had left.
Then I asked him for his wallet. In his wallet was $60.
I have already made the submissions about it should have been an uneven amount if he had been in the cab. It was “three $20 notes”. He said he was robbed by “a couple of fellas”. His clothes are set out there. There is a reference to the stain on the front of his shirt which appeared similar to blood. There is a reference to having had a fight in the hotel and then he was allowed to walk off and went through the railway station.
Based on Margaret Bromley’s evidence there was some mud on Bromley’s clothes. So, the Crown’s argument is that perhaps a short time earlier prior to him being interviewed, he had been up to his hips in mud and water in the River Torrens. The submission that we make is obviously he would have been soaking wet if that was true, and if that were true it is extraordinary that four competent police officers, two of whom were actually in physical contact with him in helping him out of the prickly bush, do not say anything about it in their evidence. That aspect the Crown seeks to draw as part of its circumstantial case is just not able to be sustained.
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Carter said he then went “to the pie cart” and when he then walked along the bridge, he saw Derek (Bromley) and John (Karpany) come out from the Torrens and he gave them a drink of water. He said that when the police car came around, they tried to cut it and run away. Then he saw the police put Derek in the car.
Bromley was never put into the car - he was hiding. We say, that is just total confabulation; that encounter on the bridge did not happen. There is no time during which it could happen.
Gageler ACJ: But these are objective difficulties with the evidence, as presented at the trial by Carter. We have not got anywhere near the new psychological evidence yet?
Mr Keim: Yes.
Gageler ACJ: Why are we being told these things?
Mr Keim: It is part of my response to the way in which the Court of Appeal failed to apply the new psychiatric evidence.
Edelman J: But you are leaving, really, your ground of appeal to the last 10 minutes?
Gageler ACJ: We do want to hear you on it. In fact, everything you have said so far in your submissions was covered in the original appeal.
Mr Keim: Yes, because I am taking the evidence from the trial. The new psychiatric evidence says that because of the new knowledge, Carter’s evidence was very likely to be unreliable, and this is how far it goes. It says unless it is corroborated on almost every point, then you cannot rely on it.
Edelman J: So, we are coming now to your ground of appeal? Mr Keim: Yes.
Edelman J: All right.
Mr Keim: And. at every point. it is not corroborated, and it is not corroborated in anything that incriminates Bromley, apart from George’s photographic identification evidence. It is not corroborated by anything that is incriminatory. It is only corroborated in things that are incidental and, even where the broad outline of the story is supported by other evidence, Carter’s evidence is wrong in a number of respects. So, his memory is still full of gaps that he has just filled in through memory consolidation.
The contingency that has to be satisfied is corroboration in almost every particular. That is the unchallenged medical evidence. It is not satisfied. The Court of Appeal essentially has
provided its own medical evidence. It says, well, he has corroborated on bits and pieces here and there, our medical opinion is that is enough. And the suggestibility aspect of it is he keeps on mentioning something about saving people on the riverbank or seeing people murdered on the riverbank, or whatever, but in all of these versions given to the medical staff and given to police officers – and as late as early June – they do not have a coherent outline.
This part of the evidence says people with this condition are likely to be very suggestible, and particularly if they are concerned about themselves, that is likely to make them more vulnerable and more suggestible. The inference that you draw from that is that there is some part of his memory which is corroborated; that is, something happened on the riverbank, he was on the riverbank, somebody’s trousers disappeared on the riverbank, his barbell ended up in the creek, Docoza’s shoes ended up in the river.
That part of the evidence is fairly consistent, even though the background story keeps on changing. What he did keeps on changing. He can only have filled in those gaps by listening very carefully to cues from questioners, whether they are nurses or police officers or whatever. That is the suggestibility aspect of the argument, and we say the Court of Appeal has ignored both of those aspects of the evidence.
Gageler ACJ: So, with this condition, he is vulnerable to suggestion. That is the medical evidence.
Mr Keim: Yes.
Gageler ACJ: And where do we find the evidence of the suggestion occurring?
Mr Keim: The medical experts were cross-examined about this. It has to be inferred. A good example of it is, the stories given to the hospital staff were, I saved this guy on the riverbank from being attacked by these two Aboriginal people; I saved his life, I am going to the Adelaide Advertiser about it so they can do a story about it; I got out my nunchakus, and I chased them away – I chased the attackers away.
The body is located, and on 9 April there is a story in the Advertiser about this body which has been found in the river and, his story then changes to, this person was killed on the riverbank. So, he had not saved them, he killed them. But it is an example of that suggestibility, that it was no longer viable for him, in his schizoaffective state, to put forward a grandiose story that he saved these people. He now had to say that the person died. Whether he knew that the person died or not, or whether he left earlier, or whether he had been involved in drowning or killing the person, we do not know, but his story changes.
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The most dramatic change is the change between his story that he met Bromley in the hotel, which he gives on 4 June – which is quite late; it is two months after the incident – and yet, by the trial, he is able to give coherent evidence which is largely true that, we left the house together, we walked to a phone box, we rang up, the taxi came, we caught the taxi into town, we did a U-turn in Hindley Street.
So, the suggestibility is the medical opinion. We do not have a record of all of the input he got from medical staff or from doctors, or the questions that he was asked by police officers. But we can infer from his illness – from his suggestibility as part of his illness – and the fact that part of the narrative for such a long period of time was not a coherent narrative. So, that is where we say suggestibility is significant to the evidence that he gave in the first trial.
Edelman J: The short point is that his narrative changes, and, in some respects, quite considerably?
Mr Keim: Yes.
Edelman J: And you say there are only two possible explanations for that. One is that either he suddenly has recalled, to the extent that his evidence later is accurate, all of these additional details, or the only other possibility is that it has come from suggestion?
Mr Keim: Yes.
Edelman J: Do you want to take us to the medical evidence? Mr Keim: Yes.
Gageler ACJ: It would also be helpful for you to take us to those parts of the reasoning in the Court of Appeal where you say we find a wrong turn, or failure to deal adequately with your argument.
Mr Keim: The doctors largely agree with one another and apart from a minor point, Dr Brereton [the prosecution witness] agrees with the opinions of the other experts as set out in their reports.
The experts speak in terms of considering Carter to be unreliable. The reason for that is primarily that he was suffering from the acute symptoms of schizoaffective disorder around the time he witnessed the subject event.
The medical evidence is clear, and the medical evidence is uncontested. But the court mistakes that evidence and says, well we can ignore that evidence because it just based on the
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medical condition. Then they take concessions and extrapolate them to come to their conclusions which essentially ignore the evidence. they say:
The point we make here is that a person with schizoaffective disorder can, on occasion, recall things accurately. But the evidence was the effect of the condition is such that Mr Carter was highly likely to be unreliable most of the time and that you could not rely on his evidence unless it was supported by other evidence.
Steward J: I thought also at least some of the experts said that whilst it may be true that they are capable of giving reliable evidence, you just will not know or be able to tell when that is happening?
Mr Keim: Exactly right, and that is the medical opinion, your Honour. Steward J: Thus, the need for corroboration of what is said?
Mr Keim: Yes, and that is the medical opinion.
Edelman J: That is really the nub of your complaint, is it not? The nub of your complaint is that it is correct to say that with schizoaffective disorder, Mr Carter was capable of giving the reliable evidence, but it is just incomplete because to complete that sentence, as Justice Steward said, you do not know when it is that that evidence is going to be reliable or not?
Mr Keim: Yes.
Steward J: Is it your case –we know that the directions given in this matter went to this Court in the 1980s and there was no problem found with them. Is it your case that what might arguably make the evidence compelling – assuming we agree it is fresh – is that it demonstrates that the directions given by the trial judge were inadequate or not effective, because what the trial judge did not say to the jury was what we just said just now; namely, you cannot accept Carter’s evidence unless it is corroborated. He said you needed to give it serious caution, but his Honour did not go that far. Is that the case you are making?
Mr Keim: Yes – that is not what we put forward at this point in time, but that is what follows from what we say, and that is because the Court would have before it unchallenged medical opinion.
Steward J: That is why I asked you before. There was, in fact, no psychiatric expert evidence before the Court?
even in the acute phrase, have been able to recall events accurately and that
Carter was capable of accurately recalling the subject event.
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Mr Keim: Yes.
Steward J: I think that is right.
Gleeson J: Mr Keim, can I just clarify something. I think you just submitted that it was the mere fact that Mr Carter had schizoaffective disorder which raised problems with his credibility. As I understand the case, it is that he was suffering from acute symptoms of schizoaffective disorder at the relevant times. There is quite a distinction. You are not saying that just because he happened to be a person who suffered from that disorder, he was out of court as a reliable witness?
Mr Keim: That is a much better expression of it, your Honour. And it would be discriminatory to take the other line. The thing that I thought of saying at that time but never got around to is it is not just based on, this person has got schizoaffective disorder, I will just write down all these medical opinions. They have looked at Dr Barrett’s report, they have looked at the hospital reports, they have gone through it carefully, they have seen how it has been expressed, but there are very significantly varying accounts of an event that is itself causing him trauma. It is all of that evidence that they have relied upon to come to those opinions. And, of course, that is part of what your Honour has just said, because all of that evidence is evidence of the acute symptoms to which your Honour has referred.
Edelman J: That is why you rely on the evidence about the extent of the period by which he was affected by showing the symptoms of schizoaffective disorder?
Mr Keim: Yes. And the detail of the evidence is that, through this very long period, two of the things that are really affected are cognition but also laying down memory. So, it is not at all surprising that large aspects of what happened are unreliable, because his cognitive processes are just not working, and his memory formation has all of this confabulation in it.
Dr Brereton was briefed by the Crown. The psychological and psychiatric witnesses, in the key respects, agree with one another. All of the witnesses were skilfully cross-examined and any limitations to the generality of opinions expressed were properly mapped and taken away.
The end result of that process is the medical opinion is unchallenged. And, we say, it was open to the Crown to call competing evidence, but it did not do so. It was open to the Crown to argue that the medical experts were unqualified or misguided – not very open, because they were highly, highly qualified, highly respected experts, including one the Crown had briefed themselves. It was open to the Crown to put a proposition to Dr Brereton and others
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that if Carter was corroborated on 40 per cent of his evidence, then the Court could extrapolate that he was, despite his acute illness, reliable on the other 60 per cent when he gave evidence in Court. That was not put to any expert.
Gageler ACJ: Would anyone talk in those percentage terms, really?
Mr Keim: They would not, but my point is a broader one. The prosecutor was very careful to put his limiting questions in general terms. At no stage did he try to say, if you have this thing right, and if you have this thing right, could these other things be correct? The case was deliberately left as an unchallenged set of medical opinion. That is what the Court of Appeal was left with at the end of the day, and, we say, it is very, very, unusual for the Court of Appeal to be out for – sorry, your Honour.
Jagot J: But there was clearly cross [examinastion] – when you say unchallenged - the summary says there was cross-examination including of Dr Brereton, and part of the cross-examination was that Dr Brereton could only accept Professor Coyle’s opinion that you had no way of knowing – it is only correct if you consider Carter’s evidence in a vacuum.
Mr Keim: Your Honour is absolutely correct. Yes, it was a very well-conducted forensic process by the Crown, and the quality of the cross-examination was at a very high level. But my point is this: by the time a medical opinion is distilled down, in the terms that we have put it – in the terms that the Court of Appeal itself has summarised it – that is unchallenged because that is the state of the evidence at the end of the cross-examination. And the experts agreed with one another with regard to it. I say it is unchallenged, from that point of view.
It is not something that any court can then disregard. If you have very high-quality, high-level expert medical opinion which has already been considered by another party to say, well, we do not think it is right – and that is exactly what the Court of Appeal has done because it has said, well, if there is a little bit of esoteric knowledge here and a little bit of circumstantial evidence here, then we just treat you as reliable. That is effectively what the Court of Appeal has done.
Gleeson J: Mr Keim, do you say that the new evidence is compelling because, if it were before a jury, a judge would be constrained, perhaps, to direct that Mr Carter’s evidence could only be accepted to the extent that it was corroborated?
Mr Keim: We say that, yes.
Gleeson J: Do you say other things to characterise the compelling nature of the evidence?
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Mr Keim: It is compelling because it is highly probative in the - - -
Edelman J: It is probative to the point that Justice Gleeson is putting to you? That is it, that is your argument, is it not?
Mr Keim: Yes, but it does not just go – well, no, your Honour is correct. Gleeson J: Could it be less than that?
Mr Keim: No, because if that evidence is received by the court, then the judge could not allow the matter to go to a jury without giving those instructions.
Gageler ACJ: So, what were the instructions that were, in fact, given by the judge about the caution that should be exercised?
Mr Keim: That he was sick at the time; he was much sicker than he presents in court today; you must scrutinise his evidence carefully.
Jagot J: You keep saying it cannot be accepted unless independently corroborated, but that, of course, is not how the Court of Appeal characterised the evidence. It was deliberate, one assumes, about may not be reliable; there are certainly parts of their summary [of the expert evidence] which support that it is not that it is necessarily unreliable. The Court of Appeal’s judgment where you said you do take issue with that “may”?
Mr Keim: The summary to Dr Brereton’s evidence took into account the cross-examination.
Jagot J: You cannot just read para 550 of the court’s summary of the expert evidence as representing the culmination of all of Dr Brereton’s ultimate opinion? That is not what the Court of Appeal has done in the summary. It set out a kind of raw summary of the evidence. Its ultimate thing is those propositions where you took issue with the “may”?
Mr Keim: Yes, but what I say is that the expression of opinion extracted there is that 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.
Jagot J: True, but - - -
Mr Keim: It is an opinion that remained at the end of cross-examination. That was not departed from, but what was readily agreed to in cross-examination was a person with these symptoms and this condition is capable of having accurate recall of some things.
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Jagot J: Well, this may be where the context of the actual evidence is important, because “in some detail” might mean - where Dr Brereton says there is a big difference between, you know, bashing and throwing in the river, and other elements of delusion, and that
The more concrete the event, the higher the likelihood of accurate recall.
The only point I am making is that I do not know that it is right to assume that your characterisation of the medical evidence –it does not match the Court of Appeal. I am not sure that is your starting point; that is all. Your characterisation that it has been unchallenged - it is undisputed.
Mr Keim: Yes. What I say is that Dr Brereton’s opinion at the beginning of the day, continued to be the evidence at the end of cross-examination.
Gageler ACJ: So, is Dr Brereton the high-water mark for your argument here?
Mr Keim: No. We say they [the 3 experts] are all very similar, in our written submissions, we footnoted relevant parts of the evidence of all the psychiatric and psychological reports. We particularly choose Dr Brereton because he was a person briefed by the Crown. In that sense, his qualifications are unchallenged.
Gageler ACJ: So, can we compare that with what the trial judge said? Mr Keim: The Court of Appeal said?
Gageler ACJ: No, the trial judge, in the summing up.
Mr Keim: Yes, your Honours. I can go to that. The phrase “scrutinise . . . with special care” that we are all familiar with spans two pages, but it is for the jury to decide whether they are convinced of the accuracy. And, again, that is a traditional warning direction. It says that he was “mistaken”. Then the trial judge sets out the Crown’s argument that: ‘Carter was supported by independent evidence to a substantial extent’ and, obviously, the matters that we went to about how substantial that is. He continued ‘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 –‘
So, there is actually no requirement for corroboration. It is a subjective assessment by a jury, after giving it careful scrutiny, whether they are satisfied. So, in answer to your Honour, the Acting Chief Justice’s question, we say that is quite a long way from what would be the appropriate direction in circumstances where the court had received a medical opinion [such as this] in this matter.
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I have given all of the citations of Dr Sugarman’s evidence. I do not propose to go through that now. With regard to the authorities, most of them are set out in some length in our written submissions.
Gleeson J: Mr Keim, just looking at the Full Court’s reasons that shows that the High Court, back in 1986, looked at the particular direction in this case. It seems to have assumed, wrongly, that Mr Carter suffered from schizophrenia as opposed to schizoaffective disorder, and then concluded on the basis of that and, no doubt, other evidence that the direction was sufficient to warn the jury of the possible danger of acting on Mr Carter’s evidence if it was not confirmed by other evidence. That seems, to me, to raise a question about what it is about the new evidence that would mean that a different analysis from that that was undertaken by the High Court in 1986 should apply?
Mr Keim The new evidence would say, that this particular person’s evidence cannot be taken as reliable unless it is corroborated in almost every respect; and that, even where he is shown to be correct in some respects, you cannot assume that, therefore, he is correct in another respect, even in a related respect.
An example that Dr Brereton gave was just because he was able to describe everything that happened on the riverbank, you could not extrapolate from that that, therefore, he got the persons involved – the persons responsible – correct. It is very strong medical opinion. It is a long way removed from what was before the High Court in 1986 that this person suffered from schizophrenia.
It is an appropriate approach to say that if somebody is suffering from a severe mental illness, with nothing more, that you should scrutinise their evidence. But once you know the details of that, and the impact of the cognition of those submissions, and on memory formation, objectively, this Court would have to say that a direction that fitted the medial evidence should be given.
We tend not to focus on the directions. We say the directions will take care of themselves once the evidence is there. What we are saying is the evidence with regard to Mr Carter, is such that any trial judge would be required to give directions appropriate to that evidence. It is not really an academic exercise at this stage. It is just doing your job as a trial judge.
Gleeson J: Am I correct to understand that you are not saying that the law has changed or evolved to meet developing knowledge of psychiatric learning since 1986, but you are saying
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that the requirement that the warning appropriate to the circumstances of the case would have been different if this evidence had been given?
Mr Keim: Yes. We are saying exactly that, your Honour.
Steward J: There is a passage in the judgment of Justice Brennan [in the previous High Court hearing] in this matter, which may assist you. What his Honour says is significant.
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.
That sort of helps you, but his Honour then goes on to say:
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.
I suppose on your case you might say, well, the difference between then and now is the better understanding of the medical evidence that might have affected how the jury might have comprehended his evidence?
Mr Keim: Yes. This Court does not have to rethink a general approach to directions on the basis of some general mental health condition.
Steward J: Your point is the direction at the time was perfectly all right, having regard to what was understood and having regard to the fact that there was no psychiatric expert evidence before the court.
Mr Keim: It is the second point in particular that I say. Steward J: Yes.
Mr Keim: There was nothing before the court to say that that was not sufficient. Now there would be.
Steward J: I see.
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Mr Keim: That takes us to just some of the case law. The case of Rodi v Western Australia points to the construction of the phrase “in the interests of justice”. The situation at common law is set out there and the Court says with regard to appeals where there is fresh evidence:
It is settled that a miscarriage of justice will be established where fresh evidence, when viewed in combination with the evidence given at trial, shows there is a “significant possibility that the jury, acting reasonably, would have acquitted the accused” had the fresh evidence been before the jury.
And then, the last sentence:
That being so, a miscarriage of justice would be established if there were a significant possibility that the jury acting reasonably might have acquitted the appellant had that evidence been available to it.
That is all familiar language.
Gageler ACJ: Are you saying that approach should be applied to the expression “interests of justice” in this new appeal right?
Mr Keim: Yes.
Gageler ACJ: You may be setting a higher bar for yourself than has previously been brought. I am not sure.
Mr Keim: What I am saying is, that, in construing the section that uses the phrase “interests of justice”.
Gageler ACJ: I think we were back at the “compelling evidence” bit of the provision. We have moved on now to the “interest of justice” provision?
Mr Keim: Yes I have, because this relates to the reliance on the propensity evidence.
[This was about the introduction on the appeal to the Court of Criminal Appeal concerning Mr Bromley’s prior conviction. The prosecution said that they could introduce this evidence to show that if Mr Bromley had committed a prior sexual assault and been convicted for that, it might not be ‘in the interests of justice’ for him to proceed with an appeal against this later conviction for murder]
Gageler ACJ: I see.
Mr Keim: The reliance on the propensity evidence and the reliance on some other bits of evidence which are said to exhibit esoteric knowledge, et cetera – although when you look closely at the Court of Appeal’s judgment with regard to that, they only rely upon the esoteric
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evidence in about the same way as they will rely on the fact that the deceased’s boots were found in the water, it does not take it any further - - -
Gageler ACJ: It is a kind of corroboration.
Mr Keim: Yes. It is corroboration of a very general statement of what was happened. We do not dispute that some events happened on the riverbank and the deceased ended up dead – that is clear. What we are saying is that the Court of Appeal is wrong in receiving that extra evidence because in fresh evidence appeals, the Crown is not allowed to have a second go – the Crown is not allowed to take the evidence that it had all of the time and say, well, we could have made something with this, we will run this in the fresh evidence appeal. So, the authority of Rodi should govern the construction of interests of justice here, with Van Beelen.
Gageler ACJ: What “the interests of justice” means was dealt with in Van Beelen?
Mr Keim: What the parties here say is – the Crown says Van Beelen left it open as to what ‘the interests of justice’ might be. There are some things that can be brought in. We say that the Crown says, therefore it is open slather, and what they have really sought to do here is, we say, stuff that should never be allowed in, ‘in the interests of justice’ because of the principles stated in Rodi.
The Crown’s evidence is just not fresh evidence. The example that was given in Van Beelen’s Case was if there is a public confession on TV between the trial and now, that would be sufficient to not grant permission for an appeal even though the evidence was compelling, because the compelling evidence is just wiped out by the public confession.
The Court’s example, we say, was meant to show that it would be very exceptional where it would not be in the interests of justice if the evidence was compelling.
Here, if the Court was to endorse what the Court of Appeal has done in this case, with regard to allowing the Crown to bring in anything in their files that they have always had, there would be no limits. There would be no obligation on the Crown to show that their evidence is fresh, or that there was some reason why it was not adduced at the time.
It is just – this evidence was not worth running at first instance, but we will now put it out on a second trial application to try and convince the Court that it is not in the interest of justice. In our submission, that would be an interpretation of the phrase ‘in the interests of justice’ that just flies against the principles of double jeopardy, but flies against the principles that have been expressed in cases like Rodi down the years.
Our written submissions and the citations that we have given sufficiently indicate those aspects of the authorities that we particularly rely upon.
Gageler ACJ: That completes your submissions in-chief, Mr Keim? Mr Keim: It does, your Honour.
The matter was adjourned until Thursday, 18 may 2023
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
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