Speaker 1: Good.
Speaker 2: Just before nine o'clock last night, the jury returned guilty
Speaker 2: verdicts against all three defendants.
Speaker 3: It was absolute shambles, to tell you the truth, just
Speaker 3: absolutely really patent.
Speaker 1: Blood on his clothing the day after the alleged a
Speaker 1: top on.
Speaker 2: A shallow mud bank and it fits through a river.
Speaker 3: Basically, I think most of the people are used to
Speaker 3: me are good people.
Speaker 2: I think a really important question we need to ask
Speaker 2: is how many Indigenous prisoners in Australia are innocent.
Speaker 1: This is Curtain, a podcast where we pull back the
Speaker 1: blinds to shine a light on the darkest parts of
Speaker 1: our justice system and ask who are the victims. I'm
Speaker 1: Amy Maguire and I'm.
Speaker 2: Martin Hodgson, a senior advocate for the Foreign Prisoner Support Service.
Speaker 2: And a warning, this series contains the names of deceased
Speaker 2: peoples and has distressing content that might upset some listeners.
Speaker 3: Welcome to episode fifty five of Curtain the Podcast. When
Speaker 3: we started this podcast series more than two years ago,
Speaker 3: we asked a question how many other Indigenous prisoners are innocent?
Speaker 3: And along the way we've heard stories from around the country,
Speaker 3: and during that time we've seen people who are innocent,
Speaker 3: like Jane Gibson be freed during that time. But over
Speaker 3: the course of making this podcast, we heard about another
Speaker 3: case in South Australia, one that has many similarities to
Speaker 3: that of Kevin Henry. And it's such a troubling case
Speaker 3: that it's shocking that people like myself who look at
Speaker 3: these cases every single day and Aimy as a journalist,
Speaker 3: we'd never heard of this case. It has received some
Speaker 3: small coverage in South Australia, but this should be a
Speaker 3: national story. The case is that of Derek Bromley, who
Speaker 3: spent more than thirty four years in prison. Just like
Speaker 3: Kevin Henry, He's always maintained his innocence, but just like
Speaker 3: Kevin Henry, he remains in prison. Amy, just briefly, I
Speaker 3: guess to give people a background. We have spoken a
Speaker 3: little bit about Derek's case, but just if you can
Speaker 3: explain the basics of why Derek is in prison.
Speaker 1: Yeah, So, Derek Bromley is an Aboriginal man from South Australia.
Speaker 1: Back in nineteen eighty four, he had just been released
Speaker 1: from prison for serving three years for being present while
Speaker 1: a male was sexually assaulted and Derek did not perpetrate
Speaker 1: that assault, but on the first night that he was released,
Speaker 1: he went into Adelaide just for a night out on
Speaker 1: the town. Now, that night, on April third, nineteen eighty four,
Speaker 1: a non indigenous man named Stephen Dukhozer died. His body
Speaker 1: was found five days later in the River Torrens, which
Speaker 1: runs through the center of Adelaide. Now, the key witness
Speaker 1: in the case was a man named Gary Carter who
Speaker 1: suffered from schizophrenia in paranoia and he implicated Derek Bromley.
Speaker 1: He claimed that he saw Derek with Stephen Darkoza and
Speaker 1: he claimed that Derek assaulted him. Now, there were a
Speaker 1: lot of problems with that eyewitness in this eyewitness identification,
Speaker 1: the main problem of which was that this was a
Speaker 1: man who was suffering from severe paranoia and psychosis. There
Speaker 1: was another reason that Derek Bromley was implicated and given
Speaker 1: a very harsh sentence. It had to do with the
Speaker 1: forensic pathologist, doctor Colin Monok, who was South Australia's chief
Speaker 1: forensic expert and has since been widely discredited. And doctor
Speaker 1: Mannott claimed that there are a number of bruises and
Speaker 1: cut on Stephen Dokoza's body which were consistent with an
Speaker 1: assault and He also claimed that Stephen Decoza's caused death
Speaker 1: was drowning. But those two key pillars that implicated Derek
Speaker 1: Bromley and resulted in him serving so much time in jail.
Speaker 1: In fact, he's still in jail serving time over his sentence,
Speaker 1: like Kevin Henry, is credited by a series of experts.
Speaker 1: So that's a very brief rundown of the case itself
Speaker 1: Mardin for our listeners who may not know about it.
Speaker 1: But what actually has stood out to you and why
Speaker 1: do you believe that there are grounds to believe Derek
Speaker 1: Bromley's please of innocence.
Speaker 3: I think the first thing you try and do is
Speaker 3: look at what the evidence was that was presented in
Speaker 3: court before you even go and look for new and
Speaker 3: fresh evidence that I believe has been found and uncovered.
Speaker 3: And I think even based on what was presented in court,
Speaker 3: person could have convicted Derek beyond a reasonable doubt. And
Speaker 3: the reason I say that is because there were already
Speaker 3: serious questions about mister Carter's mental health. He was the
Speaker 3: prime witness against Derek, and it's since been found by
Speaker 3: a series of psychiatrists that he was vulnerable to things
Speaker 3: like suggestibility, that ideas could have been quite easily placed
Speaker 3: in his head, that were things that were just not true.
Speaker 3: And so you go and look at can we find
Speaker 3: something that he said that doesn't appear to be correct. Well,
Speaker 3: straight away he places Derek Bromley at the scene, but
Speaker 3: he doesn't really know Derek. And that's always a problem
Speaker 3: with an eye witness. How well do they know a person,
Speaker 3: because that helps us grade how well they'll know whether
Speaker 3: they've seen someone or not. Now, a person who knew
Speaker 3: Derek much better, a prison support worker, had seen Derek
Speaker 3: earlier in the night, and Derek was wearing casual clothing
Speaker 3: in Adelaide. Now, both the taxi driver and to a
Speaker 3: certain extent mister Carter, who were in a cab with
Speaker 3: this taxi driver on the way to where the murder happened,
Speaker 3: describe Derek as wearing a white, flashy suit, sort of
Speaker 3: dressed like someone out of the twenties. Now, people who
Speaker 3: know the area in Adelaide where this was a nightclub
Speaker 3: district have an idea of who this person might have been,
Speaker 3: a local drug dealer. It wasn't Derek Bromley. So straight
Speaker 3: away we have the eyewitness. Whether you believe it or
Speaker 3: not really doesn't matter. The question you have to ask
Speaker 3: yourself is is the evidence compelling beyond Deresa doubt. We
Speaker 3: already have someone who knows Derek much better than the
Speaker 3: other people there saying that description doesn't match Derek and
Speaker 3: doesn't match what he was wearing earlier that night. And
Speaker 3: when Derek was arrested by police, he was still wearing
Speaker 3: the same clothes he was seen earlier the day before
Speaker 3: in by that prison support officer. He was never seen
Speaker 3: by anyone who can confirm his identity in that white suit.
Speaker 3: Then I think we have to look at the issue
Speaker 3: of doctor Mannock. And we've discussed previously about Colin Mannock
Speaker 3: on this podcast and a horrific autopsy that you almost
Speaker 3: can't call it an autopsy he performed on an Aboriginal
Speaker 3: person in an Aboriginal community. I'll link to that podcast
Speaker 3: because I don't want to go through those details again
Speaker 3: because they are quite horrific. But not only did doctor
Speaker 3: Mannock behave in this way, not only has a number
Speaker 3: of people like Henry Keoh been found innocent and had
Speaker 3: their convictions overturned by the Court of Criminal Appeal because
Speaker 3: of the shoddy work of doctor Manock. Doctor Mannock was
Speaker 3: at the time South Australia's chief forensic pathologist, but as
Speaker 3: has been uncovered, there is no record showing that doctor
Speaker 3: Mannock has the qualifications that would qualify him to even
Speaker 3: be a pathologist, let alone the leading one in the state.
Speaker 3: And so then you can look at Derek's case again
Speaker 3: and look at the pathology work. Some of the conclusions
Speaker 3: doctor Manock comes to are absolutely ridiculous and a series
Speaker 3: of actually qualified forensic pathologists have rejected them out of hand.
Speaker 3: One of the big problems in a case like this
Speaker 3: where a person has been in the water, in this
Speaker 3: case for five days, is it's almost impossible to determine
Speaker 3: whether they were conscious or unconscious when they entered the water,
Speaker 3: if drowning was the cause of death, when certain injuries
Speaker 3: took place, and of course no forensic material was able
Speaker 3: to be lifted from the body, and all of this
Speaker 3: means that you can't give an exact time as to
Speaker 3: when the deceased departed or was placed in the water,
Speaker 3: So you cannot place Derek Bromley at the crime scene
Speaker 3: at a convincing time. You cannot come up with a
Speaker 3: convincing cause of death, so you can't even allege how
Speaker 3: Derek has supposed to have killed this person. And because
Speaker 3: you can't lift any forensic material, you can't override shoddy
Speaker 3: eyewitnesses and say categorically that Derek was there. So you have,
Speaker 3: just like Kevin Henry, you have no forensic evidence linking
Speaker 3: Derek whatsoever. You have seriously flawed eyewitness testimony in this case. Really,
Speaker 3: you have someone who should never have been giving witness
Speaker 3: testimony on the stand. In Kevin's you don't even have
Speaker 3: anyone get on the stand who puts Kevin at the
Speaker 3: time of death with Linda. In fact, we know he
Speaker 3: was elsewhere. And these are the two key things you're
Speaker 3: looking for. Did the person commit the actual crime that
Speaker 3: can be proven forensically and do people place them at
Speaker 3: the scene, And in both cases you can't. And yet
Speaker 3: the thing I really want to point out about Derek's
Speaker 3: case in particular is that while others have been freed
Speaker 3: on far less fresh and compelling evidence, Derek remains in prison.
Speaker 3: The only difference being Derek is aboriginal.
Speaker 2: Martin.
Speaker 1: You outlined a lot of the similarities between Kevin and
Speaker 1: Derek's cases just then. One of the key similarities I
Speaker 1: found is that obviously there were victims. Both victims in
Speaker 1: both cases were found in waterways, and both relied on,
Speaker 1: as you said, really deficient forensic pathology reports around particularly
Speaker 1: the cause of death, which Growth said were drowning. Derek's case,
Speaker 1: Derek was convicted around nineteen eighty four nineteen eighty five,
Speaker 1: and Kevin was convicted for a murder that happened in
Speaker 1: nine ninety one. Was there something specific to that time period?
Speaker 1: Was the technology or the science up to scratch at
Speaker 1: that point? Is that Does that play any part in
Speaker 1: how these termen have been convicted based on forensics?
Speaker 3: I think it definitely does. And history and analysis of
Speaker 3: these sort of cases tells us that all through the
Speaker 3: eighties and the early nineties, forensic pathologists were around the
Speaker 3: world and usually in the criminal justice system, inflating their
Speaker 3: ability to determine certain causes of death. So in the
Speaker 3: eighties and nineties, particularly causes of arson and drowning were
Speaker 3: overinflated as to the ability of a forensic pathologist to
Speaker 3: say how and if a person drowned and when in
Speaker 3: a time period they drowned, And similar with arson cases
Speaker 3: as to when a fire was set and how it
Speaker 3: was caused. The big difference is not only has the
Speaker 3: technology improved, not only has the forensic science improved, but
Speaker 3: what you will hear all forensic pathologists say now about drowning,
Speaker 3: particularly when the body has been in the water for
Speaker 3: a considerable period of time, in this case five days,
Speaker 3: you can't prove absolutely drowning. All you can do is
Speaker 3: eliminate everything else. So you might eliminate blunt force trauma,
Speaker 3: you might eliminate things like blood loss, a natural cause
Speaker 3: of death such as heart attack. But what you cannot do,
Speaker 3: and this remains true to this day, is simply find
Speaker 3: that someone drowned without ruling everything else out first. And
Speaker 3: the forensic pathologists in both Kevin and Derek's case did
Speaker 3: not do that. They both came up categorically stating that
Speaker 3: both Winda and the victim in Derek's case drowned, and
Speaker 3: they did it based on junk science, science that just
Speaker 3: wouldn't be accepted in a court of law today. And
Speaker 3: I think that alone should cast an enormous amount of
Speaker 3: doubt over both convictions. That the evidence that was presented
Speaker 3: and the way it was presented is not considered science anymore.
Speaker 3: It's no different scientifically to saying the Earth is flat,
Speaker 3: which people once said. What they said in court is
Speaker 3: just not true to the way we know it today,
Speaker 3: and it doesn't stack up with any of the other
Speaker 3: evidence that was presented against either Kevin or Derek.
Speaker 1: And it seems that from what you've outlined, Derek Bromley
Speaker 1: has a very good case but was subsequently not back
Speaker 1: by the Court of Criminal Appeal only this month, them
Speaker 1: very quickly, and we've seen in South Australia that other
Speaker 1: cases like you mentioned, namely Henry Keo who was exonerated
Speaker 1: after serving twenty years in prison for a crime that
Speaker 1: very likely did not happen, that actually went through a
Speaker 1: couple of years ago. And you mentioned also about the
Speaker 1: fact that you know Derek Bromley is an Aboriginal man.
Speaker 1: But it seems that the weight of evidence is just
Speaker 1: so much that they should just send it back to court.
Speaker 1: What reasons do you think the Court of Chriminal Appeal
Speaker 1: would have had to just knock back that application of
Speaker 1: believe just so quickly when they've seen previous cases like
Speaker 1: the case of Henry Kio go through on the same statute.
Speaker 3: Yeah, it's a really good question, and what we have
Speaker 3: to remind people. Is the reason that this is even
Speaker 3: an option for Derek is that doctor Mannock was so
Speaker 3: discredited the forensic pathologist, that South Australia had to pass
Speaker 3: a special law allowing people who'd been convicted previously in
Speaker 3: these sorts of cases, these serious cases of murder, to
Speaker 3: appeal to the Court of Criminal Appeals so that they
Speaker 3: could have this new, fresh and compelling evidence heard. Whereas
Speaker 3: in cases like Henry Keo's that you've mentioned, the court
Speaker 3: found that the evidence was fresh and compelling. In Derek's
Speaker 3: they didn't. Now I'll make two statements about that. One is,
Speaker 3: in my professional opinion, Derek Bromley has more fresh and
Speaker 3: compelling evidence in his favor than Henry Keo. That's not
Speaker 3: to say Henry's case shouldn't have got up. It should have.
Speaker 3: It's just that Derek has far more to work with
Speaker 3: and far more evidence that he's both fresh and compelling
Speaker 3: as to his guilt and involvement in the crime. But
Speaker 3: the other issue I think is that Henry Keo's case
Speaker 3: had garnered a great deal of media attention, and there
Speaker 3: was a lot of coverage of both his first conviction
Speaker 3: and then of all of his appeals and everything that
Speaker 3: led up to that. And while courts will say they
Speaker 3: are immune to that sort of outside pressure, I think
Speaker 3: it's pretty clear that when you have more evidence in
Speaker 3: Derek's favor but he's knocked back as opposed to Henry,
Speaker 3: who had all this pressure, that that certainly must have
Speaker 3: played a part. And I guess the last thing we
Speaker 3: have to say is the court was not being asked
Speaker 3: to find Derek guilty or innocent. All Derek was asking
Speaker 3: for was for a new trial, a chance to present
Speaker 3: this evidence. Why after thirty four years, were a man
Speaker 3: who has maintained his innocence that whole time, in fact,
Speaker 3: could finally confess, do parole programs and walk free, but
Speaker 3: he's refused to do it. That's how positive he is
Speaker 3: about his innocence. He knows he didn't do it because
Speaker 3: he wasn't there, and he didn't do it. The evidence
Speaker 3: shows he could not and should not have been found
Speaker 3: guilty beyond a reasonable doubt, and all he is asking
Speaker 3: for is a chance to present that new, fresh and
Speaker 3: compelling evidence to a court. And what I find most
Speaker 3: egregious by the decision is that this wasn't a court
Speaker 3: saying we uphold the predest decision, or that we find
Speaker 3: you innocent based on the new evidence. This was a
Speaker 3: court saying we will not even look at new evidence.
Speaker 3: We will not consider that a mistake has happened, where
Speaker 3: the same forensic pathologist was involved in making serious other
Speaker 3: mistakes that saw innocent people go to jail for decades.
Speaker 3: I think that's unconscionable and I hope in the future
Speaker 3: Derek's final appeals opportunity to the High Court is successful
Speaker 3: because for a court to say we'll keep our eyes
Speaker 3: closed to evidence while a man sits in prison for
Speaker 3: a crime he didn't do, is the worst failure the
Speaker 3: justice system can make.
Speaker 1: And the other thing I find interesting Martin, just hearing
Speaker 1: you talk about South Austraia and the very different set
Speaker 1: of circumstances down there, is that obviously in Queensland we
Speaker 1: do not have that statue. We don't have that ability
Speaker 1: to go back to the Court of Criminal Appeal in
Speaker 1: relation to fresh and compelling evidence. What would have to
Speaker 1: happen in relation to Kevin's case.
Speaker 3: It's a really important point because some people have raised
Speaker 3: with us, why don't we go down the same path
Speaker 3: that Derek's legal team has gone well in Queensland. It's
Speaker 3: just not an avenue that's open. You cannot file a
Speaker 3: bid with the Court of Criminal Appeal for this fresh
Speaker 3: and compelling evidence that we have uncovered to be heard.
Speaker 3: It's just not a possibility in Queensland. And sadly, as
Speaker 3: we've seen for Derek, while it works for non Indigenous people,
Speaker 3: this change in the South Australian law, even this change
Speaker 3: has not worked for Derek, and so he's sat and
Speaker 3: waited every single day in prison while his legal team
Speaker 3: have worked their guts out and have done a great job,
Speaker 3: but still the legal system fails him. And so I
Speaker 3: think we have to come to another conclusion, which is
Speaker 3: that people like Derek and Kevin require mass community support
Speaker 3: if the criminal justice system that previously failed them, that
Speaker 3: previously failed their victims or their alleged victims who have
Speaker 3: never got justice because the wrong people are in jail.
Speaker 3: We see by the example of Henry Keo, we see
Speaker 3: by the example of Andrew Mallard in Western Australia, in
Speaker 3: Jane's case more recently, that the only way justice is
Speaker 3: done is to apply vast public pressure, and that even
Speaker 3: new evidence as we've presented in Kevin's case, as could
Speaker 3: have been made available and was to the court had
Speaker 3: they chose to consider it. In Derrek's that they will
Speaker 3: look away and do nothing. And I just want to
Speaker 3: add this about both Derek and Kevin. Derek, as a
Speaker 3: young Aboriginal child, was snatched away from his family. He
Speaker 3: was targeted throughout his life as we know, and sent
Speaker 3: to prison as a young man for simply being present
Speaker 3: when a crime was committed, not a crime he partook
Speaker 3: in in any way, He was simply present during that time.
Speaker 3: He was incarcerated at the Yatla Labor Prison, a prison
Speaker 3: that no longer exists. Such were the hellish conditions and
Speaker 3: remember the word labor prison. That's not what a prison
Speaker 3: is supposed to be in a country like Australia. You
Speaker 3: don't force people to work as slaves. And Derek fought
Speaker 3: back against that. He was one of the key protesters
Speaker 3: and he spoke outwardly about his treatment. We also know
Speaker 3: that Kevin had a childhood and a young adult life
Speaker 3: of being targeted by police and being brutalized by corrections
Speaker 3: officers just the same. In Derek's case, the police and
Speaker 3: corrective services had said they get him back in Kevin's case,
Speaker 3: as we know, with so many people who were present
Speaker 3: that night, they were hounded and hounded by the police
Speaker 3: until some ended up in prison and some tragically took
Speaker 3: their own lives. So not only is the difference between
Speaker 3: someone like Derek and Henry key Oh or Kevin and
Speaker 3: Andrew Mallard the fact that they're being judged in a
Speaker 3: court of law differently because they're Aboriginal, and that the
Speaker 3: evidence is not considered, it's that the first contact they
Speaker 3: had with the state, the first contact they had with
Speaker 3: the criminal justice system, was because they were criminalized because
Speaker 3: they were Aboriginal. It's the only crime they really ever committed.
Speaker 3: And until we wake up to that fact and realize
Speaker 3: that once an innocent person is in prison has been
Speaker 3: through the criminal justice system, getting them out and removing
Speaker 3: them from that deadly state apparatus is almost impossible. Look
Speaker 3: at Miss dw she died in custody. She was criminalized
Speaker 3: because of some small unpaid fines despite being the victim
Speaker 3: of domestic violence. Just this week, we've seen a victim
Speaker 3: of domestic violence be placed in handcuffs and taken to
Speaker 3: prison because she was aboriginal. For no other reason, could
Speaker 3: anyone argue. So when you start by criminalized people purely
Speaker 3: because of who they are, we will continue to have
Speaker 3: this problem. And as Derek's case, and as Kevin's case
Speaker 3: continues to prove, despite all the evidence, despite the most
Speaker 3: modern forensic science, despite the witnesses being disproven, Kevin and
Speaker 3: Derek remain in prison. So what we're left with is
Speaker 3: not the ability to turn to the courts who have
Speaker 3: failed Kevin and who this year have now failed Derek
Speaker 3: despite welcome changes. Once again, it shows what we've been
Speaker 3: pushing for is to expose the sheer number of Aboriginal
Speaker 3: people who are innocent and incarcerated, and not for them
Speaker 3: to have to wait for years and years of appeals,
Speaker 3: but for them to be pardoned by the state governors
Speaker 3: who have the power to do it tomorrow.
Speaker 1: That was episode fifty five of Curtain