Speaker 1: Just before nine o'clock last night, the jury returned guilty
Speaker 1: verdicts against all three defendants. It was absolutely shambles, to
Speaker 1: tell you the truth, just absolutely really. Heman blood on
Speaker 1: his clothing the day after the alleged a top on
Speaker 1: a shallow mud bank and it fits through a river. Basically,
Speaker 1: I think most of the people are used to me
Speaker 1: are good people. I think a really important question we
Speaker 1: need to ask is how many Indigenous prisoners in Australia
Speaker 1: are innocent.
Speaker 2: This is Curtain, a podcast where we pull back the
Speaker 2: blinds to shine a light on the darkest parts of
Speaker 2: our justice system and ask who are the victims.
Speaker 1: I'm Amy Maguire and I'm Martin Hodgson, a senior advocate
Speaker 1: for the Foreign Prisoner Support Service. And a warning, this
Speaker 1: series contains the names of deceased peoples and has distressing
Speaker 1: content that might upset some listeners.
Speaker 2: Welcome to Curtain the podcast. A few episodes ago, we
Speaker 2: reported on story of another Aboriginal man Innocent Inside. If
Speaker 2: you haven't heard that episode already, then I suggest you
Speaker 2: go back through on iTunes or Spotify or where you're
Speaker 2: listening now to find that episode and listen to the
Speaker 2: details of the case we're going to be discussing. Derek Bromley,
Speaker 2: as we explained, is an Aboriginal man who's been imprisoned
Speaker 2: for the last thirty five years in Australia. He's maintained
Speaker 2: his innocence that entire time, and all the evidence suggests
Speaker 2: that his innocence is valid and his maintaining of his
Speaker 2: innocence is reflective of what happened that night, that he
Speaker 2: is not guilty of the murder he is convicted of.
Speaker 2: As we spoke about, Derek had recently been rejected by
Speaker 2: the Court of Criminal Appeal in South Australia. At the
Speaker 2: time when we reported on the case, we really hadn't
Speaker 2: had a chance to explain or look at exactly why
Speaker 2: the court had refused to uphold Derek's appeal and grant
Speaker 2: him a chance at a new trial. Now, after a
Speaker 2: couple of months, we've been able to look at what
Speaker 2: happened in the Court of Criminal Appeal, but more importantly
Speaker 2: we've had a chance to read some more of the
Speaker 2: work of doctor Bob Miles from Flinders University, who has
Speaker 2: followed this case. Is an expert in proving the innocence
Speaker 2: of individuals and examining wrongful convictions and particularly at understanding
Speaker 2: where forensic evidence breaks down. And Doctor Miles has had
Speaker 2: some things to say about Derek's case and the rejection
Speaker 2: of his appeal that I think are very timely and
Speaker 2: need to be raised, both in relation to Derek's case
Speaker 2: but also that of Kevin Henry. As Doctor Moles explains,
Speaker 2: in twenty thirteen, South Australia enacted a new statutory right
Speaker 2: of appeal. It was the first major change to appeals
Speaker 2: rights in Australia for one hundred years, and both because
Speaker 2: of the work that doctor Moles has done, the work
Speaker 2: we've done on this podcast and is now being done
Speaker 2: right around Australia. It is quite clear that a large
Speaker 2: number of prisoners are innocent and clearly have been over
Speaker 2: the previous one hundred years, who have never had a
Speaker 2: chance to prove their innocence in a court of law.
Speaker 2: They're not asking simply to walk free. They're asking for
Speaker 2: a trial where all the evidence is presented and experts
Speaker 2: with valid qualifications are called. That's all they're asking for
Speaker 2: and they say that will prove their innocence, so why
Speaker 2: not test it. But as Doctor Moles also points out,
Speaker 2: the recent decision rejecting Derek Bromley's case has not only
Speaker 2: invalidated this new appeal right, but also raised questions about
Speaker 2: rights of appeal in Australia completely. As we mentioned, when
Speaker 2: Derek went to the Court of Appeal, eight experts, including
Speaker 2: two experts brought by the Crown, all agreed in their
Speaker 2: reports that significant errors had been made at Derek's initial
Speaker 2: trial in regards to the evidence that was presented. But
Speaker 2: despite this, despite all these experts both for the defense
Speaker 2: and the Crown, agreeing that significant errors had been made,
Speaker 2: the appeal judges said that even after a careful review,
Speaker 2: they could satisfy themselves that Bromley was actually guilty of
Speaker 2: the offense. What throws this into further disregard is the
Speaker 2: fact that, as we've spoken about on this podcast a
Speaker 2: number of times, the forensic pathologist who performed all the
Speaker 2: pathology work in Derek's trial was one doctor Mannock, the
Speaker 2: now disgraced former head of forensic pathology in South Australia,
Speaker 2: who it is also questioned whether he even has the
Speaker 2: appropriate or ever held the appropriate qualifications to be a
Speaker 2: forensic pathologist. So the errors that he made was significant,
Speaker 2: and it was these errors largely that allowed for Derek
Speaker 2: to be placed at the crime scene and for it
Speaker 2: to be possible for Derek to have committed the crime
Speaker 2: when you know the record of doctor Mannock, as we've
Speaker 2: previously spelled out, case after case where he has been involved,
Speaker 2: has been shown that he has got the forensic work
Speaker 2: completely wrong. As all the experts in this new appeal
Speaker 2: said significant errors were made, and yet Derek has spent
Speaker 2: thirty five years in prison despite all the experts today
Speaker 2: saying significant errors were made. There's also the issue that
Speaker 2: the lead witness against Derek was someone who suffered from schizophrenia,
Speaker 2: who was known to lie, who it has been demonstrated,
Speaker 2: was very susceptible to manipulation by law enforcement and those
Speaker 2: trying to get Derek Bromley. And as we've explained in
Speaker 2: the past, and you need to listen to this in
Speaker 2: the other episode, the police had a reason to be
Speaker 2: going after Derek, and that's because he helped expose the rotten,
Speaker 2: corruption and violent conditions in a prison in South Australia.
Speaker 2: But what is most troubling about Derek's appeal and the
Speaker 2: decision of the judges.
Speaker 1: Is that.
Speaker 2: Those judges allowed the Crown to present additional evidence, new
Speaker 2: evidence that was not shown at Derek's first trial. This
Speaker 2: is almost without precedent, and it was done purely to
Speaker 2: demonstrate that Derek had and I quote doctor Miles here,
Speaker 2: a propensity to commit that type of appellance guilt of
Speaker 2: the offense. Clearly, as doctor Miles suggests, if this was
Speaker 2: so true, why didn't the Crown offer up this evidence
Speaker 2: at Derrek's original trial. The truth is that evidence can't
Speaker 2: be substantiated, there is no weight to it, and it
Speaker 2: should never have been allowed in the appeal. This is
Speaker 2: not what the appeal is supposed to look at. It
Speaker 2: was supposed to look at fresh and compelling evidence that
Speaker 2: would grant Derek a new trial. Fresh and compelling evidence
Speaker 2: was provided by eight experts, two of whom were for
Speaker 2: the Crown. All agreed significant errors had been made. The
Speaker 2: fact that the Crown then resorted to bringing in this
Speaker 2: new evidence, and that the judge has allowed it, will
Speaker 2: now be of review by the High Court. This is
Speaker 2: something we hope the High Court takes very very seriously,
Speaker 2: and a tactic that should not survive because it throws
Speaker 2: into question the possibility of having a fair trial at all.
Speaker 2: Of being able to have a retrial or a trial
Speaker 2: in front of a jury of one's peers. If every
Speaker 2: norm can be broken simply to secure a conviction, above
Speaker 2: all the errors made in Derek's case, Above all the
Speaker 2: evidence that shows he is innocent of this crime. The
Speaker 2: fact that he spent thirty five years in prison where
Speaker 2: both sides agree significant errors were made, where the chief
Speaker 2: forensic pathologist had no qualification to be in that courtroom,
Speaker 2: and has been shown to get forensic report after forensic
Speaker 2: report wrong, is an outrage. Derek Bromley should be freed tomorrow.
Speaker 2: The fact is, though he will require the High Court
Speaker 2: to step in and ensure all Australians are able to
Speaker 2: get a fair retrial and an effective chance at appeal.
Speaker 2: What makes this even more galling is that others have
Speaker 2: been released because of doctor Mannock's dodgy work. They include
Speaker 2: Henry Keoh, whose conviction was quashed on December nineteen, twenty fourteen.
Speaker 2: There is far less compelling evidence against Derek than there
Speaker 2: was against Henry, and yet Henry was rightly freed and
Speaker 2: his murder conviction overturned. More so, Henry was paid compensation
Speaker 2: in the way of two point five million dollars. Yet
Speaker 2: Henry has not served and did not serve anywhere near
Speaker 2: the time Derek has served. Henry and as we say again,
Speaker 2: should have been freed but didn't have the overwhelming weight
Speaker 2: of evidence in his favor as Derek does. So why
Speaker 2: does a black man who has served thirty five years
Speaker 2: in prison remain there when others walk free? Today? I
Speaker 2: think we get further answers when we look to New
Speaker 2: South Wales. It was announced by the Attorney General that
Speaker 2: Kathleen Folbeg, who was found guilty of over the deaths
Speaker 2: of her four children, would have her case subject to
Speaker 2: an inquiry. This is the sort of inquiry we've been
Speaker 2: calling on for Kevin Henry, and also that should examine
Speaker 2: all the cases of people serving significant sentences of decades
Speaker 2: and decades where they maintain their innocence and there are
Speaker 2: doubts as to the forensic evidence. In the case of
Speaker 2: Kathleen Folbeg, all four of her children died as infants.
Speaker 2: In two thousand and three, she was found guilty of
Speaker 2: the murder of three of her children and the manslaughter
Speaker 2: of the fourth. She's always maintained they died of natural causes.
Speaker 2: She's currently serving a minimum of twenty five years behind bars.
Speaker 2: But new forensic evidence suggests it is possible for a
Speaker 2: single family to have multiple deaths attributed to natural causes
Speaker 2: of children who are infants. Now, I don't know the
Speaker 2: forensic evidence well enough to make a call on this
Speaker 2: one way or the other, and I don't offer any
Speaker 2: opinion as to miss Folbegg's guilt or innocence. What I
Speaker 2: do say, however, is that given there is new forensic
Speaker 2: evidence now saying what was previously presented as forensic fact
Speaker 2: is now at least doubtful, if not wrong, then an
Speaker 2: inquiry has rightly been called. The Attorney General said that
Speaker 2: it was with immense difficulty that this decision was made.
Speaker 2: But why is it so difficult for anywhere in Australia,
Speaker 2: any jurisdiction, whether it's South Australia with Derek Brom or
Speaker 2: in New South Wales with this case, for the justice
Speaker 2: system to be willing to do some self reflection and
Speaker 2: see if they've got it wrong in the past, particularly
Speaker 2: when we are talking about forensic science. We know forensic
Speaker 2: science is a fast moving field. We also know significant
Speaker 2: mistakes are made, as we've explained in the past the
Speaker 2: state of Illinois, for example, completely scrapped the use of
Speaker 2: the death penalty because twenty five percent of all men
Speaker 2: on death row in Illinois were found to be innocent
Speaker 2: when a review of their cases was conducted. A quarter
Speaker 2: of the men who were about to be executed had
Speaker 2: in fact not committed any crime at all. More of
Speaker 2: those men that were on death row had serious doubts
Speaker 2: rays as to whether they'd committed the crime because of
Speaker 2: new evidence. So once again in New South Wales we
Speaker 2: at least have the willingness of an inquiry to be called.
Speaker 2: And it's hard not to think this didn't come on
Speaker 2: the back of the ABC's Australian story into the case
Speaker 2: of Miss Folbig. Now what this inquiry determines, I honestly
Speaker 2: have no idea. Again, I offer no opinion as to
Speaker 2: her guilt or innocence. I can only hope that the
Speaker 2: inquiry gets to the truth. Four young children have died
Speaker 2: and they deserve justice, and so does their family. If
Speaker 2: Miss Folbig has been wrongfully convicted because of bogus science,
Speaker 2: she deserves to be released. If the forensics was correct
Speaker 2: in her initial trial, and modern forensic pathologists using the
Speaker 2: latest technology determine that well, then her sentence will remain.
Speaker 2: But you have to ask why is Kevin Henry not
Speaker 2: granted this same opportunity, remembering there is far less doubt
Speaker 2: about the forensics in Kevin Henry's case in Miss Folbigg's
Speaker 2: and I need to say this purely for the education
Speaker 2: and information of our listeners. Miss Fahlbig is a white
Speaker 2: woman in New South Wales. Kevin Henry, like Derek Bromley,
Speaker 2: is aboriginal. Kevin Henry, like Derek Bromley, sees other people
Speaker 2: released when they have more evidence proving their innocence. The
Speaker 2: forensic evidence that is up for debate in Miss Folbigg's case,
Speaker 2: and it will be subject to an inquiry over the
Speaker 2: next six to twelve months, is complex. The forensic evidence
Speaker 2: against Kevin Henry simply does not exist. What forensic evidence
Speaker 2: there is, as we have demonstrated quite clearly in this podcast,
Speaker 2: proves Kevin Henry could not have committed the murder of
Speaker 2: Linda could not have committed. In fact, not a single
Speaker 2: piece of forensic evidence was offered up at Kevin's trial
Speaker 2: to show he committed the murder, not a single piece.
Speaker 2: What was presented was wrong anyway, remember as well, not
Speaker 2: a single witness was called that saw Kevin Henry commit
Speaker 2: a crime, not one, and that is not disputed. So
Speaker 2: why in South Australia has a white man been freed
Speaker 2: and paid two point five million dollars in compensation while Bromley,
Speaker 2: an Aboriginal man in South Australia, has had his appeals
Speaker 2: rejected despite more compelling evidence. Significant errors was the statements
Speaker 2: of all laid experts in Derek Bromley's appeal. Why in
Speaker 2: New South Wales, where there is evidence towards both innocence
Speaker 2: and guilt in the case of Miss Folby, is there
Speaker 2: an inquiry into her case? But in Queensland for Kevin Henry,
Speaker 2: where there is no doubt as to the forensics pointing
Speaker 2: to his innocence, there is no such inquiry. Two Aboriginal
Speaker 2: men no justice, two non Aboriginal Australians getting justice. That
Speaker 2: is why we started curtin the podcast. That is what
Speaker 2: we hoped we wouldn't prove, but what we thought would
Speaker 2: be the case that other innocent Aboriginal people are in prison,
Speaker 2: men and women. The proof of today's episode is not
Speaker 2: that they're not innocent. Derek Bromley and Kevin Henry are
Speaker 2: innocent men. The proof is that every state in Australia
Speaker 2: and the Commonwealth of Australia refuses to even look at
Speaker 2: the evidence against either Derek Bromley or Kevin Henry. And
Speaker 2: I put it to you the reason they will not
Speaker 2: even let that evidence in court, evidence that, if they
Speaker 2: were so sure was accurate, would show these men to
Speaker 2: be guilty, is because they know it shows them not
Speaker 2: to be guilty and proves what we have said from
Speaker 2: the first episode of this series. Kevin Henry is an
Speaker 2: innocent man and joining him in South Australia is innocent
Speaker 2: man Derek Bromley. It's time both of them got inquiries
Speaker 2: into their cases and the sooner they walk free the better.
Speaker 2: That was Curtain the podcast