Recent Cases

Bromley v The King [2023] HCA 42 (13 December 2023) (GAGELER CJ, EDELMAN, STEWARD, GLEESON AND JAGOT JJ)


Catchwords:


Criminal law – Appeal against conviction – Second or subsequent appeal – Where applicant convicted of murder in 1985 – Where applicant’s conviction depended to considerable extent upon evidence of witness with schizophrenia or schizoaffective disorder – Where reliability of witness’ evidence was relevant issue at trial – Where applicant applied for permission to appeal pursuant to s 353A(1) of Criminal Law Consolidation Act 1935 (SA) (“CLCA”) – Where s 353A(1) of CLCA relevantly provided “Full Court may hear a second or subsequent appeal against conviction … if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal” – Where fresh psychiatric and psychological evidence demonstrated developments since 1985 in field of cognitive and memory deficits in people with schizophrenia or schizoaffective disorder – Where new evidence required to be fresh and compelling – Where evidence compelling if reliable, substantial, and highly probative in context of issues in dispute at trial – Whether fresh psychiatric and psychological evidence compelling – Whether fresh psychiatric and psychological evidence highly probative of relevant issue at trial – Whether in interests of justice to consider fresh evidence on appeal – Whether substantial miscarriage of justice occurred.

High Court – Special leave to appeal – Where application for special leave did not purport to raise any question of legal principle – Where application for special leave argued on basis of interests of justice in particular case – Where Court required to reconsider evaluative conclusions of fact reached by Court below – Where exceptional procedural course taken – Where one aspect of application permitted to be subject of full argument on merits as if on appeal – Whether application for special leave ought to be granted.

Words and phrases – “cognitive and memory deficits or impairments”, “compelling”, “exceptional procedural course”, “expert opinion”, “fresh and compelling evidence”, “inconsistencies and inaccuracies”, “independent corroboration”, “interests of justice”, “jury direction”, “psychiatric and psychological evidence”, “reliability”, “reliable, substantial, and highly probative”, “second or subsequent appeal”, “special leave to appeal”, “substantial miscarriage of justice”.