PASSAGE OF THE DAY: "But the other evidence from the experts, three pathology experts, was that Dr. Manock didn't actually know how to diagnose a drowning case. He didn't go through the correct procedures and therefore he'd not effectively excluded a possible death from natural causes. And, of course, if that was so, then that would give rise to a reasonable doubt - and that would be a sufficient basis for the conviction to be overturned. But on the appeal to the High Court, the High Court said they would only look at the evidence of the key witness in the case, and they were not allowed to address the issue of the forensic pathology. That brings us back to the situation where, if Mr. Bromley wished to proceed with a further appeal, the fresh evidence would be - well, Dr. Manock, the pathologist who gave evidence at the time wasn't, in fact, qualified. That has not been raised as part of any previous appeal process. Therefore, it would count as fresh evidence for a further appeal. And if that were advanced in a further appeal, it's my view that the appeal, especially in the light of the judgement from the two dissenting judges today, would be successful. So, it's perfectly possible there could be a further appeal process initiated by Mr. Bromley's lawyers."
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INTERVIEW:13 Dec 2023 radio 5AA Mornings with Graham Goodings interviews Dr. Robert Moles on '5AA Mornings.'
Link to audio of program
GIST: Graham Goodings: Derek Bromley, who spent almost 40 years in prison for a murder he says he did not commit, has just lost his High Court bid for freedom. Dr. Bob Moles is the adjunct associate professor at Flinders University who's been following the case probably since its inception and has just read the High Court judgement. He joins me now. Professor, thanks for your time today.
Bob Moles: Glad to be with you.
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Graham Goodings: Can you, before we assess the High Court decision, can you just background the case for us?
Bob Moles: Sure. Mr. Bromley was charged with assaulting Stephen Docoza down on the River Torrens in 1984. It was said that he'd been out on the town that night after having just been released from prison. He went down towards the river, met up with the Docoza, with a few others, and in his drunken state, made a proposition for him for some sort of sexual interaction. Docoza said, I'm not like that or I don't want to. Bromley was said to have bashed him and then thrown him in the river.
The evidence against him was given by a person who was suffering from a schizoaffective disorder, which meant that he was schizophrenic and also suffering from a bipolar condition. This meant that on the evening the incident occurred, he was suffering from both visual and audible hallucinations. He thought that he was a top league footballer and he thought that he was an expert in kung fu and he also thought he was the King of Adelaide.
The prosecution mentioned at the time of the trial he was obviously mistaken about all of those things because they're obviously untrue, but did say to the court that he's not necessarily mistaken when he says he saw Mr. Bromley attack Docoza by kicking and bashing him and throwing him in the river.
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Graham Goodings: So, Bromley was not acting alone, was he?
Bob Moles: No, no. He was in company with a person called Karpany, and they were with the other man I mentioned Beau Carter who was there as well. And so there was a group of them together.
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Graham Goodings: So, the result of the court case resulted in - was it a life sentence?
Bob Moles: Yes, it was a life sentence. Initially, he got I think it was 34 years as the non- parole period, and that was subsequently reduced to 24 years when they changed the way of assessing the non-parole period.
At the end of the end of the 24 years, Bromley was applying for parole to be released on parole and of course he was then asked ‘how do you feel about what you did?’ And he said, ‘look, actually I wasn't there. I didn't do it.’ And they said, well that means you're not suitable for parole because you haven't shown remorse or contrition for what you did.
And so, he has served over 14 years, in addition to what one would have to say, was a fairly lengthy non-parole period. He has spent an extra 14 years and he's now been in prison for 39 years, coming up to 40 years. And he still says he wasn’t there and he didn’t do it.
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Graham Goodings: So, can you tell us about the High Court judgement today?
Bob Moles: Yes, the High Court judgement is in many respects a very extraordinary judgement, as the judges said at the beginning of their judgement. This is merely an application for leave to appeal. I should say that the application for leave to appeal had continued through the court process for over ten years and it's only today, ten years and seven months after the new right of appeal came in that we finally get a decision on the application for leave to appeal.
And, as the judges said, it's very unusual for the court to give written reasons for a leave to appeal application, extensive written reasons, over 120 pages. It's also very unusual to have a split decision on such a key issue with three of the judges deciding that the grounds are not made out.
But Justices Edelman and Steward - some very well-known and highly respected judges of the High Court - were both very clear. They said that leave should have been granted; that the appeal should have been allowed; that it was in fact a substantial miscarriage of justice - and they further said that the verdict of an acquittal should have been entered!
And so, it's three in favour of the status quo, as it were - and two of them making it very clear that this was, in fact, a wrongful conviction and Bromley should have been acquitted.
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Graham Goodings: So, is this the end of the story? Does it - can it - go anywhere from here? Bob Moles: Well, that's an interesting question, you see, because under the new right of
appeal, it does allow for a second or further appeal.
Now, one of the grounds for any appeal is that there should be some fresh and compelling evidence. One of the most important aspects, I think, of the whole case that's been heard so far is that one of the conditions for the High Court appeal was that they would only consider the evidence relating to the eyewitness, the person who was suffering from the hallucinations and so on.
But, of course, there's always in the background been the other issue of the forensic pathology The forensic pathology was done by Dr. Manock, and most people - certainly those in South Australia and beyond that know that there's very clear evidence to show that Dr. Manock was never qualified as a pathologist. He was never qualified to give evidence in court about any cases at all.
Remarkably, on the initial appeal itself, Mr. Bromley's senior counsel withdrew the affidavits which referred to Dr. Manek not being qualified. Now, it's never been explained why that occurred. But in any event, the issue of Dr. Manock not being qualified was not pursued in that first stage of the appeal.
But the other evidence from the experts, three pathology experts, was that Dr. Manock didn't actually know how to diagnose a drowning case. He didn't go through the correct procedures and therefore he'd not effectively excluded a possible death from natural causes. And, of course, if that was so, then that would give rise to a reasonable doubt - and that would be a sufficient basis for the conviction to be overturned.
But on the appeal to the High Court, the High Court said they would only look at the evidence of the key witness in the case, and they were not allowed to address the issue of the forensic pathology.
That brings us back to the situation where, if Mr. Bromley wished to proceed with a further appeal, the fresh evidence would be - well, Dr. Manock, the pathologist who gave evidence at the time wasn't, in fact, qualified.
That has not been raised as part of any previous appeal process. Therefore, it would count as fresh evidence for a further appeal. And if that were advanced in a further appeal, it's my view that the appeal, especially in the light of the judgement from the two dissenting judges today, would be successful. So, it's perfectly possible there could be a further appeal process initiated by Mr. Bromley's lawyers.
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Graham Goodings: A remarkable turn of events. Dr. Bob Moles, thank you so much for your time Adjunct Associate Professor at Flinders University on the case of Derek Bromley, who spent almost 40 years in prison for a murder he says he didn't commit. His lost his High Court bid for freedom. But as Dr. Bob Moles has suggested, there may be cause for a further appeal."
The entire interview can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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/120008354894645705/47049136857587929
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.
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-123488014
