Bromley Versus the King: Australia’s Worst Miscarriage of Justice Continues

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By Paul Gregoire and Ugur Nedim

Ngarrindjeri and Narungga man Derek Bromley was sentenced to life imprisonment by the South Australian Supreme Court on 14 March 1985, for the murder of Stephen Docoza, who was bludgeoned to death on 4 April 1984 and was found floating in Adelaide’s River Torrens days later.

Bromley’s case is significant as he’s maintained his innocence ever since. Indeed, Bromley is the longest serving inmate in Australia claiming to be innocent.

The system won’t release him despite his having been eligible for parole since 2006, because he won’t accept responsibly. He states that he can’t as he didn’t commit the murder, while Bromley’s alleged accomplice, John Karpany, accepted his responsibility in 2004 and was released from gaol.

Bromley appealed his conviction in the 1980s, which, as both were dismissed, saw his right to appeal exhausted. Yet, SA passed 2013 laws that permit second and subsequent appeals in light of “fresh and compelling evidence” if the court considers a substantial miscarriage of justice has occurred.

And new evidence regarding Bromley’s case did arise in relation to a key witness. But despite this, the South Australian Supreme Court refused Bromley permission to appeal in 2018. And it was due to the new law that the High Court permitted him to seek special leave to appeal in 2023.

Fresh and compelling evidence

The High Court heard Bromley’s appeal over the 17 and 18 of May last year. Justices Stephen Gageler, Jacqueline Gleeson and Jayne Jagot explained in their findings that seeking special leave is not regular litigation but “a preliminary procedure” to enable control of the volume of work.

Their Honours add that to give “extensive reasons for the refusal of special leave to appeal has long been extremely rare”. Yet, the current proceedings warranted such an explanation for the refusal, especially as the court didn’t “raise any questions of legal principle.”

The fresh evidence from three psychiatrists and two psychologists was submitted via reports and testimony to the SA Supreme Court in 2016, and it concerned developments in psychiatry regarding schizoaffective disorders and their effects on memory in relation to witness Gary Carter.

Carter testified that he’d accompanied Bromley, Karpany and Docoza down to the banks of the River Torrens on the early morning of 4 March, and he alleged that the two accused propositioned the deceased for sex and, on refusal, they beat the man to death, whose body then rolled into the river.

However, the fact that Carter was suffering a schizoaffective disorder at the time of the incident was known to the South Australian court during the trial, and former SA Supreme Court Justice Roderick Matheson told the jury to treat the witness’ evidence with “considerable caution”.

Not highly probable

Bromley sought special leave appeal to the High Court last May, based on the ground that the verdict was unsafe due to Carter’s condition, which was based on fresh psychiatric and psychological evidence that he put to SA Supreme Court in his unsuccessful application to appeal in 2018.

The fresh evidence consisted of a greater understanding of “cognitive impairment in memory functioning” being “associated with schizoaffective disorder and that patients so affected are much more likely to have memory defects”. So, the consensus was they make “unreliable historians”.

Further points of evidence include those suffering the disorder being susceptible to suggestibility, testimony regarding the distinction between “memory of objective factual events” and “grandiose delusional beliefs” no longer holding, and that there are clear exceptions to all of these points.

The SA appeals court rejected the first three points of new evidence, as it found that while the evidence was indeed fresh and reliable, the SA justices considered that, due to evidence supporting Carter’s account, it was not “highly probable” and, therefore, not compelling.

And another point of contention raised regarding Carter having been hospitalised for a number of months due to his condition the year prior to the murder, and then again on the day of the murder he was committed to the Hilcrest facility for a period that lasted three months.

Truths amongst fantasy

According to Bromley’s legal team on appeal, the fresh evidence underscores that all of Carter’s evidence is potentially unreliable. And while parts of it were corroborated, that it was Bromley who killed Docoza alongside Karpany, was not supported by other evidence.

The three aforementioned justices, however, raised the point that a taxi driver had placed Bromley with likely Carter and Docoza in his car near the Torrens River at 3.30 am on the day of the murder. And police testimony places Bromley and Carter walking separately in the area an hour later.

“As noted, the psychiatric and psychological experts did not consider this evidence or material in assessing the reliability of Carter’s accounts,” their Honours added.

Carter had also met with a Father Pearson on the afternoon following the murder and told him that he’d witnessed it amongst other statements he was making that were clearly nonsense, and, in considering the man manic, the priest took him to the hospital to have him committed.

The psychiatric and psychological evidence, the High Court justices explained, revealed that whilst Carter’s delusional statements could be dismissed, the fact that he could recall the murder and was supported by other evidence led weight to its acceptability.

The High Court then listed a number of inconsistencies that Bromley had raised regarding Carter’s testimony in court, but their Honours then discredited each of them.

Not made out

The three High Court justices making up the majority of the five judge bench found on 13 December last year, that due to the reasons they’d set out “the application for special leave to appeal must be dismissed”.

High Court Justices James Edelman and Simon Stewart, however, found that leave to appeal should be forthcoming, as they determined that a substantial miscarriage of justice had occurred, that it was in the interests of justice to hold an appeal and that the fresh evidence was compelling.

But those who found the application for special leave to appeal being made out were in the minority, and, therefore, Derek Bromley, who has maintained his innocence for four long decades remains inside.

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