Bromley v The King

HIGH COURT OF AUSTRALIA

GAGELER CJ,
EDELMAN, STEWARD, GLEESON AND JAGOT JJ

DEREK JOHN BROMLEY  APPLICANT

AND

THE KING  RESPONDENT

Bromley v The King

[2023] HCA 42

Date of Hearing: 17 & 18 May 2023
Date of Judgment: 13 December 2023

A40/2021

ORDER

Application for special leave to appeal dismissed.

On appeal from the Supreme Court of South Australia

Representation

S J Keim SC with S T Lane for the applicant (instructed by Stanley Law)

M G Hinton KC with W M Scobie for the respondent (instructed by Director of Public Prosecutions (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Bromley v The King

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".

Judiciary Act 1903 (Cth), s 35A(b).
Criminal Law Consolidation Act 1935 (SA), s 353A(1).

1. GAGELER CJ, GLEESON AND JAGOT JJ.   This Court has emphasised in the past that the jurisdiction it exercises in determining an application for special leave to appeal "is not a proceeding in the ordinary course of litigation" but "a preliminary procedure recognized by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention"[1]. The Court has explained[2]:

   "Such an application has special features which distinguish it from most other legal proceedings. It is a long‑established procedure which enables an appellate court to control in some measure or filter the volume of work requiring its attention. Ordinarily, it results in a decision which is not accompanied by reasons, or particularly by detailed reasons. It involves the exercise of a very wide discretion and that discretion includes a consideration of the question whether the question at issue in the case is of such public importance as to warrant the grant of special leave to appeal. To that extent at least, the Court, in exercising its jurisdiction to grant or refuse special leave to appeal, gives greater emphasis to its public role in the evolution of the law than to the private rights or interests of the parties to the litigation."

   [1]Coulter v The Queen (1988) 164 CLR 350 at 356.

   [2]Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194 at 217‑218 (citations omitted).

2. Accordingly, the giving of extensive reasons for the refusal of an application for special leave to appeal has long been extremely rare. And because such reasons have been recognised to create no binding precedent[3], it is important to the maintenance of legal certainty that the giving of reasons for the refusal of such an application which descend in detail into the merits of the decision under appeal should remain extremely rare. The Court has for some years scrupulously adhered to the prudential practice of confining the exposition of its reasons for refusing such an application to a concise summation of the principal factor or factors informing the exercise of its discretion.

   [3]Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 117 [52], 133 [112], 134 [119].

3. The exception to that practice in the present case is justified by the exceptional feature of the application that it does not purport to raise any question of legal principle. Rather, the application has been framed and argued to warrant the discretionary grant of special leave solely on the basis that the interests of the administration of justice in the particular case[4] require this Court's reconsideration of the evaluative conclusions of fact reached by the Court of Criminal Appeal. To determine whether special leave should be granted on that exceptional basis, the Court has considered it most efficient to take the exceptional course of permitting one aspect of the application to have been the subject of full argument on the merits as if on an appeal by reference to the totality of the relevant evidence that was before the Court of Criminal Appeal. These reasons are a reflection of that exceptional procedural course.

   [4]Section 35A(b) of the Judiciary Act 1903 (Cth).

4. On 14 March 1985, the applicant, Derek Bromley ("Bromley", also known as "Milera")[5], along with a co‑accused, John Karpany ("Karpany"), was convicted of the murder on 4 April 1984 of Stephen Docoza ("the deceased" or "Docoza"). Bromley and Karpany were each sentenced to life imprisonment. Their subsequent appeal was dismissed. Bromley's application for special leave to appeal to this Court was also dismissed. Bromley remains in prison.

   [5]R v Bromley [2018] SASCFC 41 at [2], [4].

5. Bromley applied for special leave to appeal from an order of the Court of Criminal Appeal of the Supreme Court of South Australia refusing him permission to appeal a second time against his conviction for murder under s 353A of the Criminal Law Consolidation Act 1935 (SA) ("the CLCA")[6]. Section 353A(1) provided[7] that the Court "may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal". Section 353A(2) provided that a convicted person could appeal under s 353A only with the permission of the Court.

   [6]R v Bromley [2018] SASCFC 41.

   [7]Section 353A has been repealed and re‑enacted as s 159 of the Criminal Procedure Act 1921 (SA) but continues to apply to this proceeding by operation of Sch 2, item 41 of the Summary Procedure (Indictable Offences) Amendment Act 2017 (SA).

6. By an order of this Court made on 16 September 2022, the application for special leave to appeal, limited to the questions whether the fresh psychiatric evidence is compelling within the meaning of s 353A(1) of the CLCA and whether it is in the interests of justice that it be considered on the second appeal, was referred to an enlarged bench of the Full Court.

7. The fresh psychiatric evidence is the evidence of three psychiatrists and two psychologists. The evidence comprised expert reports and oral evidence given by the experts on 12 December 2016 before Stanley J. The evidence concerns developments in the field of cognitive deficits or impairments in people suffering from schizophrenia and schizoaffective disorder and their effects on memory since the date of Bromley's conviction, 14 March 1985. The evidence is relevant to an issue in Bromley's trial, being the reliability of a witness, Gary Carter ("Carter", sometimes known as "Beau" or "Bo")[8], given Carter's undisputed schizoaffective disorder at the time of the event on 4 April 1984 and when giving evidence.

   [8]R v Bromley [2018] SASCFC 41 at [3], [162].

8. It was also undisputed that the three requirements for evidence to be "compelling" in s 353A(6)(b) of the CLCA, that evidence is compelling if it is reliable, substantial, and highly probative in the context of the issues in dispute at the trial of the offence, are to be understood and applied as explained in Van Beelen v The Queen[9]. Accordingly: (a) the words "reliable", "substantial", and "highly probative" are to be given their ordinary meaning; (b) each criterion has work to do, but they will commonly overlap; (c) "reliable" means a credible and trustworthy basis for fact finding; (d) "substantial" means of real significance or importance with respect to the matter the evidence is tendered to prove; (e) evidence that is reliable and substantial will often but not always also be "highly probative" in the context of the issues in dispute at the trial; and (f) this is because the issues in dispute at the trial will depend upon the circumstances of the case[10]. "Commonly, where fresh evidence is compelling, the interests of justice will favour considering it on appeal", but there are circumstances where that may not be so (eg, a public confession of guilt). The fact that the conviction is long‑standing, however, does not weigh into the consideration of the interests of justice in deciding if fresh and compelling evidence should be considered in a second or subsequent appeal[11].

   [9](2017) 262 CLR 565.

   [10]Van Beelen v The Queen (2017) 262 CLR 565 at 577 [28].

   [11]Van Beelen v The Queen (2017) 262 CLR 565 at 578 [30].

9. As will be explained, in the present case the Court of Criminal Appeal was right to conclude that the fresh psychiatric and psychological evidence is not compelling as it is not highly probative in the context of the relevant issue in dispute in Bromley's trial, being the reliability of Carter's evidence identifying Bromley as the man who, with Karpany, attacked Docoza at the River Torrens in the early hours of 4 April 1984. For this reason, the application for special leave to appeal must be dismissed.

   Background

10. In the joint trial of Bromley and Karpany for Docoza's murder, Bromley's case was, in part, that it had not been proved either that the deceased was murdered or, if murdered, that Bromley had any involvement in that crime. The prosecution called several witnesses, including Carter. The trial judge dealt with Carter's evidence in his summing up, including in these terms:

    "Whilst on the subject of witnesses, I want to say something about Gary Carter. He undoubtedly has a mental illness; undoubtedly, as Mr Borick [Counsel for Bromley] said, he was more affected by that illness on the night in question than he was when he gave evidence before you. You must, therefore, approach Gary Carter's evidence with considerable caution, especially bearing in mind as the Crown, Mr Martin, put to you, that his evidence is so crucial to the Crown case. You must scrutinise his evidence with special care. It is open to you to act on his evidence if you are convinced of its accuracy, and you should not do so without first giving careful heed to the warning that I am now giving you. There is no doubt that in some important respects he is mistaken. I say 'mistaken' because I do not think that anyone seriously suggests that he was lying. He was clearly mistaken, you may well think, in believing that all of Docoza's clothes were removed. He was clearly mistaken in believing that the accused, Bromley, laboured Docoza with the barbell. You may decide that he was right in saying that Bromley picked it up, that he may have been struck one or more glancing blows, but the fact remains that Dr Manock's evidence undoubtedly proves that Carter was mistaken as to the use made by Bromley of the barbell.

    Counsel mentioned other matters as well and you will bear them in mind when considering whether you can accept any part of Carter's evidence. Mr Martin argued that notwithstanding all that the defence has put to you, and some of which I mentioned, Carter was supported by independent evidence to a substantial extent, and I direct you that if after scrutinizing his evidence, and bearing in mind the warning I have just given you, if that support, if you find it exists, persuades you to accept some or a great deal of what he has said, you may do so."

11. Bromley and Karpany were convicted of Docoza's murder on 14 March 1985. Their appeals were dismissed by the South Australian Court of Criminal Appeal[12]. In dismissing Bromley's appeal, which was brought on six grounds, including, relevantly, that the verdict against Bromley was unsafe, King CJ (with whom Mohr and O'Loughlin JJ agreed[13]) recorded that Bromley's conviction "depended to a considerable extent upon the evidence of Gary Carter", who was schizophrenic and whose history of mental illness meant that his evidence required "careful scrutiny"[14]. King CJ observed that there was a "considerable body of evidence which supported Carter's story at various points" and, having regard to the "very convincing body of evidence against Bromley", concluded that he felt no doubt that the jury's verdict was correct[15].

    [12]R v Bromley and Karpany (1985) 122 LSJS 454.

    [13]R v Bromley and Karpany (1985) 122 LSJS 454 at 467.

    [14]R v Bromley and Karpany (1985) 122 LSJS 454 at 462.

    [15]R v Bromley and Karpany (1985) 122 LSJS 454 at 462.

12. Bromley applied for special leave to appeal to this Court against his conviction. Gibbs CJ (with whom Mason, Wilson and Dawson JJ agreed) recorded that in support of the application "it was argued that the fact that Carter was a schizophrenic made his evidence so inherently unreliable that it was necessary for the learned trial judge to direct the jury that it would be dangerous for them to act on it unless it was corroborated and to explain to them what evidence was capable of amounting to corroboration"[16]. Gibbs CJ said that, in such a case, where there was no legal requirement for "the full warning as to the necessity of corroboration", "the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case."[17] Gibbs CJ concluded that the trial judge's warning about Carter's evidence was sufficient[18]. Brennan J considered this was a case in which a warning was required[19], and the trial judge had given a warning directing the jury's "attention precisely to the danger of acting on Carter's evidence where it was unsupported by other evidence"[20]. According to Brennan J, therefore[21]:

    "No more was needed. The credibility of Carter was the chief issue in the case and the jury could not have failed to consider whether it was safe to act on his evidence nor, once it was pointed out to them, could they have failed to appreciate the danger of placing too much reliance on the appearance of Carter in the witness box."

    [16]Bromley v The Queen (1986) 161 CLR 315 at 318.

    [17]Bromley v The Queen (1986) 161 CLR 315 at 319.

    [18]Bromley v The Queen (1986) 161 CLR 315 at 320.

    [19]Bromley v The Queen (1986) 161 CLR 315 at 325.

    [20]Bromley v The Queen (1986) 161 CLR 315 at 326.

    [21]Bromley v The Queen (1986) 161 CLR 315 at 326.

13. It is convenient to record here that the reference by Gibbs CJ to a legal requirement for "the full warning as to the necessity of corroboration" means a common law requirement for a warning that it would be dangerous to convict in the absence of corroboration in respect of certain classes of witness and certain classes of case. The point being made is that Carter's evidence was not within a class requiring a corroboration warning, but was required to be subject to a warning, as given by the trial judge[22]. In their evidence, the psychiatrists and psychologists referred to "corroboration" interchangeably with other descriptions, all of which should be understood to mean no more than supporting evidence or material of any kind.

    [22]eg, B v The Queen (1992) 175 CLR 599 at 615‑616.

14. It may also be inferred that, when observing that the jury could not have failed to consider if it was safe to act on Carter's evidence, Brennan J had in mind not only the warning given by the trial judge, but also the closing address of counsel for Bromley. Bromley's counsel, in closing address, said:

    "Secondly, you have a schizophrenic witness. How do you assess him? Not only do you have a schizophrenic witness but the man you saw in the witness box is a different man to the man who was very ill, critically ill with his illness that night. He is not the same man. You haven't seen Carter at a point of time when the schizophrenia has a hold on him. You saw some physical manifestations of it with his hands above his head all the time. You saw it later one afternoon when he was getting obviously tense and the trial stopped a little early. You have not seen him with the devil talking to him."

15. Bromley's counsel said that Carter was the prosecution's "crucial link and that is no link at all". Bromley's counsel reminded the jury about what Carter had said to them about the devil in order to "get an assessment of what is real and what is fantasy". He said Carter "is desperately ill and mental illness can be one of the worst illnesses. It is often hidden and debilitating." He continued, saying that Carter was in "the schizophrenic state ... on the night he was supposed to have made these observations", and that Carter said to the jury "the devil really appeared to him twice", and that the devil was inside his head the night he said he witnessed the offence, and he had a feeling that what he was seeing that night was "unreal". Bromley's counsel also pointed out parts of Carter's evidence that it was said were known not to be true (that the deceased was hit with a barbell, that Bromley was standing and dunking the deceased in the river, that the deceased was stripped naked, that Bromley was very drunk, and that Carter went into the water to try to get the deceased out) and said these are "[c]ritical issues", and Carter was "wrong and unreal about every one of them". Counsel said "[i]f he believes that the Devil is real, why isn't it just as possible that he believes these things that he saw which you know are not true are real too, and that what you are getting is a description from a man who is very, very ill".

16. In 2016, Bromley applied for permission to appeal against his conviction for a second time, this time pursuant to s 353A of the CLCA. In his application, Bromley relied on two classes of evidence said to be fresh and compelling: forensic pathology evidence, and the psychiatric and psychological evidence. As noted, this Court's order of 16 September 2022 referred only the psychiatric (meaning psychiatric and psychological) evidence to an enlarged bench of the Full Court for determination of the application for special leave to appeal.

17. The Court of Criminal Appeal, to the extent relevant to the psychiatric and psychological evidence, summarised the effect of that evidence in these terms[23]:

    "1 Since 1984 there has been an expansion of knowledge and understanding in relation to the condition of schizoaffective disorder. It is now well recognised that cognitive impairment in memory functioning may be associated with schizoaffective disorder and that patients so affected are much more likely to have memory defects than was appreciated at the time of the trial in 1985, although the existence of such cognitive deficits was known in 1985. The consensus of expert opinion is that most persons suffering from schizoaffective disorder are unreliable historians due to impairment in memory function and the difficulty they experience in distinguishing between real events and delusions when they are psychotic. Accounts given by persons suffering schizoaffective disorder may not be reliable absent independent corroboration.

    2 It is now well recognised that a core feature of schizoaffective disorder is that people suffering from it may be susceptible to what is referred to as 'suggestibility'. In the present context, this means that such a person may form beliefs that an event occurred, but that such beliefs may emanate from the effect of suggestibility associated with procedures such as interrogations conducted by authority figures, rather than from an actual memory of such an event.

    3 The broad distinction that Dr Barrett postulated in his report dated 6 August 1984 between grandiose delusional beliefs and memory of objective factual events can no longer be accepted.

    4 However, notwithstanding the above propositions, it is generally accepted that a person suffering from schizoaffective disorder is capable of giving reliable evidence and accurately recalling events they witnessed."

    [23]R v Bromley [2018] SASCFC 41 at [38].

18. During the hearing of the application in this Court, Bromley's counsel accepted that this summary is accurate other than that the words "may not be" in the last sentence of proposition one should read "[a]ccounts given by persons suffering schizoaffective disorder are not reliable absent independent corroboration". Bromley's counsel also accepted that the Court of Criminal Appeal's detailed summary of the psychiatric and psychological evidence (Appendix I to the Court of Criminal Appeal's reasons) is accurate.

19. With respect to proposition one, the Court of Criminal Appeal concluded that the "considerable evidence supporting Carter's account", not all of which had been considered by the psychiatric and psychological experts, "significantly diminishes" the weight to be given to their opinions about the reliability of Carter's evidence[24].

    [24]R v Bromley [2018] SASCFC 41 at [139]‑[140].

20. With respect to proposition two, the Court of Criminal Appeal concluded that the evidence did not "demonstrate that the phenomenon of suggestibility led to Carter confabulating or acquiring a false memory of Bromley attacking the deceased"[25].

    [25]R v Bromley [2018] SASCFC 41 at [196].

21. With respect to proposition three, the Court of Criminal Appeal concluded that "Dr Barrett's assessment of the capacity of Carter to give evidence at Bromley's trial, based on a distinction between his delusional beliefs and his memory of the events on the banks of the Torrens the night before his re‑admission on 4 April 1984, can no longer be sustained"[26]. The rejection of this distinction, however, did not "lead to a conclusion that the evidence given by Carter concerning the actions of Bromley must necessarily be incorrect", given "the consensus of the experts was also that a person suffering from schizoaffective disorder is capable of giving reliable evidence and accurately recording events they have witnessed"[27]. In any event, Dr Barrett's statement was not before the jury[28].

    [26]R v Bromley [2018] SASCFC 41 at [213].

    [27]R v Bromley [2018] SASCFC 41 at [214].

    [28]R v Bromley [2018] SASCFC 41 at [214].

22. With respect to proposition four, the Court of Criminal Appeal concluded that it was of "high importance"[29].

    [29]R v Bromley [2018] SASCFC 41 at [216].

23. The Court of Criminal Appeal was prepared to assume that the psychiatric and psychological evidence was fresh and considered it to be reliable and substantial. It was not, however, highly probative in the context of the issues in dispute at the trial and therefore not "compelling"[30]. Accordingly, permission to appeal was refused.

    [30]R v Bromley [2018] SASCFC 41 at [375]‑[377].

    The submissions on the application

24. The essential argument for Bromley is that the fresh psychiatric and psychological evidence, properly understood, means that each and every part of Carter's evidence is potentially unreliable. While parts of Carter's evidence had been corroborated, his identification of Bromley as the man who, with Karpany, attacked the deceased on 4 April 1984 was not corroborated. According to the submissions for Bromley, the fresh psychiatric and psychological evidence demonstrates that, in the circumstances of Carter's illness, this uncorroborated evidence identifying Bromley as a person who attacked the deceased on 4 April 1984 was unreliable. The trial judge's direction did not say that no part of Carter's evidence could be accepted unless corroborated, contrary to what – as contended for Bromley – was required, as demonstrated by the fresh psychiatric and psychological evidence.

25. According to the submissions for Bromley, this means that the fresh psychiatric and psychological evidence is reliable, substantial, and highly probative in the context of the relevant issue in dispute at the trial, being Carter's lack of reliability as a witness due to his schizoaffective disorder and the inability, in consequence, for a trier of fact to distinguish between those aspects of Carter's evidence which were true and those which were untrue. Accordingly, it is said, the Court of Criminal Appeal erred in using Carter's evidence that was corroborated to diminish the significance of the fresh psychiatric and psychological evidence that no part of Carter's evidence was reliable if not corroborated, specifically his uncorroborated evidence that it was Bromley who was with Carter and Karpany on the evening in question and it was Bromley who, with Karpany, attacked the deceased on the banks of the River Torrens.

26. The respondent argued that, as the psychiatric and psychological experts all accepted that: (a) a person with schizoaffective disorder is capable of accurately recalling events; (b) the extent to which other evidence confirmed Carter's evidence would be relevant to an assessment of his reliability; and (c) they had not fully assessed the evidence that confirmed parts of Carter's evidence, their initial evidence in their reports that Carter was a wholly unreliable witness was unsustainable. In the respondent's submission, it followed that the Court of Criminal Appeal was right to conclude that the weight to be given to their evidence was significantly diminished by these circumstances, with the consequence that their evidence was not compelling, in the sense of highly probative, in the context of the issue of Carter's reliability as a witness of the events in question.

    The fresh psychiatric and psychological evidence

27. It is not useful to repeat the summary of the fresh psychiatric and psychological evidence that the Court of Criminal Appeal appended to its reasons. The focus of this part of these reasons is the overall effect of the expert evidence, including the evidence given in cross‑examination, on: (a) whether accounts of past events given by persons suffering schizoaffective disorder may not be or are not reliable absent independent corroboration; and (b) the experts' approach to Carter's accounts and evidence. In evaluating whether the evidence is "compelling" within the meaning of sub‑ss (1) and (6)(b) of s 353A of the CLCA, it is the whole of the evidence which must be considered, not merely a part of the evidence. In the case of the opinion of an expert, accordingly, the opinion given in a report or reports from the expert must be considered together with any oral evidence, including evidence in cross‑examination, given by that expert.

28. It should be recorded here that the expertise of the psychiatrists and psychologists to give the evidence they gave is not in dispute. Nor, given the focus in this Court, is it fruitful to focus on the "freshness" (or otherwise) of the evidence. The Court of Criminal Appeal was prepared to assume the freshness of the evidence[31] and, in the circumstances of the case as put in support of this application, we too adopt that approach.

    [31]R v Bromley [2018] SASCFC 41 at [375].

29. It is also common ground that schizoaffective disorder is schizophrenia together with a mood disorder. Schizophrenia is a psychotic illness. A psychotic illness involves perceptual disorders including delusions (fixed beliefs in something false) and hallucinations (perceiving things which are not real). A mood disorder can include severe mania or severe depression. The symptoms of a mood disorder, and of psychosis, can resolve whereas the underlying schizophrenia continues.

    Dr Barrett's statement

30. The experts referred to the "report" of Dr Barrett, amongst other things. This is a reference to a statement by Dr Barrett, psychiatrist, dated 6 August 1984. Dr Barrett said Carter was his patient and had been since August 1983 when he was admitted to a hospital and treated for schizoaffective disorder, a "major psychotic form of mental illness characterized by hallucinations, delusions and a disturbance of mood varying from depression to elation". Carter was hospitalised from 26 August until 23 September 1983. He was re‑admitted between 6 and 17 October 1983 and was subsequently treated as an outpatient. Carter failed to attend as an outpatient from the beginning of 1984. The balance of Dr Barrett's statement should be recorded in full. It said:

    "He was readmitted on 4/4/84, presenting on this occasion with delusional beliefs of a persecutory and grandiose nature, viz. That the devil was affecting him, that he was a psychic, that he was a minister of religion, a top footballer and an expert in martial arts. A history was elicited from his family that he had gradually been [deteriorating] over the four weeks prior to admission. His mood at the time of admission was noted to be extremely elated, euphoric and expansive. This constellation is commonly referred to in psychiatric terms as a hypo‑manic phase of a psycho‑affective disorder.

    On admission he also gave a history to the admitting medical officer that he had seen two aboriginal men beating up a drug addict and throwing him into the river.

    He was treated as an inpatient at Hillcrest Hospital under a custody order of the guardianship board until 13/7/84, when he commenced a period of extended trial leave, living at the address of his mother and attending the Hospital day clinic.

    In my opinion his mental state has stabilized sufficiently to enable him to understand the proceedings of the court and to competently give evidence to the court. It is also my opinion that a distinction in quality can be drawn between his delusional beliefs and the account which he gave of events which allegedly took place on the date of his admission. Whereas the former are characterized by the grandiose belief that he is someone who has exceptional power and qualities, the latter account is not. That is to say it is my opinion that his description of events was not a product of delusional thinking or of hallucinated experience."

31. Dr Barrett's statement was not in evidence in Bromley's trial. The fresh psychiatric and psychological evidence disputed Dr Barrett's opinion that a distinction could be drawn between Carter's delusional beliefs and his evidence of the event he witnessed.

    Dr Furst

32. Dr Richard Furst is a psychiatrist. Having reviewed Dr Barrett's statement and other material, Dr Furst considered in his reports that it was reasonable to conclude that Carter was most likely acutely psychotic and manic on 4 April 1984 and remained so after his admission to hospital for several weeks. This could have made Carter more suggestible when interviewed by police. Dr Furst considered it difficult to reconcile the detailed account Carter gave police in an interview with the fact he was delusional and manic at that time and when compared with the various versions he gave a psychiatric nurse, Mr Steele, while in hospital. While the evidence indicated that Carter had largely recovered from the acute phase of his illness when he gave evidence at the trial, Dr Furst considered that the inaccuracies in Carter's evidence (as noted by the trial judge) and acute illness at the time of the events on 4 April 1984 cast doubt over the reliability of his evidence at the trial. Dr Furst said in his first report:

    "Given he was mentally unwell, delusional and manic at the time of his admission to hospital and initial interviews with detectives, it is difficult to determine with any degree of certainty or reliability what events really took place and what memories were based on delusional interpretations, hallucinations and/or false memories. In this respect, I note the various versions of events at the Torrens River he apparently gave to Mr Steele, psychiatric nurse, shortly after his admission to hospital."

33. Dr Furst confirmed that this remained his opinion in his supplementary report.

34. In oral evidence in chief, Dr Furst said that the appreciation of cognitive deficits associated with schizophrenia and schizoaffective disorders was not nearly as rigorous or recognised in 1985 as it is currently. People with schizophrenia and schizoaffective disorders have deficits in abstract thinking, impacting not just memory but also processing of information, attention, and problem‑solving. As such, they are more likely to be suggestible than people who do not have schizophrenia or schizoaffective disorders. Dr Furst said he remained of the view that, given his acute psychotic and manic symptoms, Carter's accounts involved too much internal inconsistency and uncertainty to know what was real and what was part of his delusional system.

35. In cross‑examination, Dr Furst agreed that Carter's accounts that he was a black belt, a psychic, a millionaire, a league footballer, and a minister of religion, and that he fought people off with nunchakus, were delusions fitting the same pattern. Dr Furst agreed that Carter's evidence that he saw Bromley and Karpany bash someone was of a very different nature or category to Carter's "grandiose or mood congruent elevated delusions". Of the hundreds of patients Dr Furst had seen with schizoaffective disorder, their ability to recall events accurately involved "quite a variation from patient to patient". Dr Furst said that some patients have a "very good recollection". Some patients do not. Dr Furst said that, much as with witnesses without any illness, "some are very good and some are very bad at remembering things and expressing that". As schizoaffective disorder involves recognised deficits in working and short‑term memory, a person with the disorder is more likely than a person without the disorder to have impaired memory encoding, but they have the capacity to accurately recall what they have witnessed at a later time.

36. Dr Furst agreed that if someone else supported what the patient was saying, that would tend to suggest the patient was reliable and accurate. Of his patients with schizophrenia accused of a violent crime, about two‑thirds or three‑quarters had a fairly good memory of the incident and about one‑quarter or one‑third had no memory or a very inconsistent narrative or denial. Dr Furst said that it is now an accepted fact in psychiatry that schizophrenia and schizoaffective disorder involve cognitive and memory deficits and persons with schizophrenia or schizoaffective disorder are more likely to have such deficits than people without schizophrenia or schizoaffective disorder.

37. Dr Furst considered the mistakes Carter made in his evidence were "very relevant" as they showed Carter made untrue statements under oath and was adamant these things had happened when they had not (eg, the use of a dumbbell – also referred to as a barbell – to attack the deceased), which made Dr Furst question the reliability of all Carter's evidence given his mental illness. The five inconsistencies in Carter's evidence that informed Dr Furst's opinion of his unreliability given his mental illness were: (a) the use of the dumbbell; (b) the deceased being completely naked rather than naked from the waist down; (c) Carter giving Panadol or some prescription medication to the deceased; (d) Carter pulling the deceased out of the river; and (e) Carter using nunchakus. Dr Furst said he was not asked to consider those parts of Carter's evidence that were corroborated by other evidence. If asked to assess a person's reliability as a psychiatrist, he would consider "external support" for the information given. That, however, was not his brief in this case.

38. Dr Furst confirmed it was not his opinion that a person with schizoaffective disorder, when in remission, could not give evidence capable of being accepted by a court beyond reasonable doubt. He agreed that a trier of fact would be entitled to look at other evidence that supports the evidence given by a person with schizoaffective disorder and find that person reliable. Dr Furst agreed that, in respect of Carter's potential suggestibility, it would be important to consider what Carter said before giving his police statement to assess whether his police statement was affected by his suggestibility. Dr Furst had seen no evidence that the police had in fact provided answers or asked questions of Carter in a way that would have affected his answers.

39. The effect of Dr Furst's evidence of particular relevance is that: (a) due to his schizoaffective disorder, Carter was psychotic and manic both when witnessing events on 4 April 1984 and for some weeks thereafter, including when giving his statement to police, but had improved significantly by the time of the trial; (b) it was now known, which it had not been in 1985, that people with schizophrenia or schizoaffective disorder suffer from cognitive deficits including in respect of memory formation and recall and are more likely to be suggestible than people without these disorders; (c) the capacity of people with schizophrenia to recall events accurately varies greatly from person to person, as is the case with any person, but it is more likely that a person with the disorder will have impaired memory than a person without the disorder due to the cognitive deficits associated with the disorder; (d) given the inconsistencies and inaccuracies both in his accounts over time and in his evidence, it was difficult to tell if Carter's statements and evidence were reliable or based on delusional interpretations, hallucinations and/or false memories; (e) there is a clear difference, however, between Carter's obviously delusional statements and his statements about the events of the assault on 4 April 1984, and this difference is relevant to his reliability; (f) if Dr Furst had to assess the reliability of a person with schizoaffective disorder to recall events accurately he would consider if other evidence supported that person's account, but had not been asked to do so in this case; and (g) a person with schizoaffective disorder, when in remission, could give evidence capable of being accepted by a trier of fact beyond reasonable doubt.

    Dr Hook

40. Dr Stephen Hook is a psychiatrist. In his report, Dr Hook considered that, in contrast to Dr Barrett's opinion, it was not possible to make a clear‑cut distinction between psychotic manifestations and rational thinking in a person who is acutely psychotic. "Some statements may be obviously delusional, but frequently there is also confusion between objective reality and fantasy, and misinterpretation of objective events. Further, manic states are characterised by a flight of ideas where many statements are made which are only tenuously linked to objective reality (if at all)." Further, according to Dr Hook, "[e]ven once an acute psychotic phase has passed, this does not mean that the individual is now able to accurately recollect and/or reality‑test material that emerged whilst psychotic. In this situation, individuals generally have incomplete recollection of events because of multiple factors – disruption of cognitive processes in psychosis; psychological defenses such as denial and rationalization, and the effects of medication." Dr Hook reviewed each of Carter's statements to police[32], and considered they did not reflect his illness in form or content as Carter was psychotic when he gave them. Rather, the statements were in a reasonably clear sequence without the digressions that would be expected if a person were thought disordered. Dr Hook considered that the possibility of Carter's involvement in the events of 4 April 1984 complicated matters further as Carter's psychosis did not mean he was incapable of directing attention to others by saying he was a witness and not a perpetrator.

    [32]The statement of 11 April 1984 is extracted below at [122]. The statements of 30 April 1984 and 24 July 1984 are not in evidence.

41. In oral evidence in chief, Dr Hook confirmed his view that, on the available material (including Dr Barrett's statement), Carter was psychotic on admission to Hillcrest Hospital and remained in that state for several weeks. Dr Barrett had recorded that Carter was hypomanic, meaning in an elevated mood state with increased activity, rate of speech and thinking, and decreased need for sleep often associated with pressure and digression in thinking. Dr Hook said that, in a psychotic state, there is the possibility of hallucinations and misinterpretation of events in terms of both perception and processing.

42. In cross‑examination, Dr Hook agreed that a person with schizoaffective disorder who is in remission may be capable of giving accurate evidence. Such a person may be reliable or unreliable in their recall. The likelihood of them being unreliable in recall would be higher if they were suffering acute symptoms of the disorder. The actual effect of the disorder on recall depends on the individual, including the severity of their illness. Generally, for all people, accuracy of recall is higher closer in time to the events in question. Dr Hook agreed that a person without any psychotic illness might also lie to protect themselves. Dr Hook agreed that if a person other than Carter had confessed to the crime it would undermine the hypothesis of Carter's involvement in the event.

43. Dr Hook accepted that it was relevant to consider any patterns in the delusions of a person with psychosis. He agreed Carter's delusions at the relevant time involved grandiosity and these were different from his statements about having witnessed a bashing of a person.

44. Dr Hook acknowledged that people with schizoaffective disorder can accurately and inaccurately recall events, including events which occur during psychosis. As they recover from psychosis some people will be able to distinguish between real events they misunderstood or misinterpreted while psychotic and some will not be able to do so. It is not uncommon for a person to be able to accurately recall events even when in the acute stage of psychosis. Dr Hook saw no evidence that Carter was confabulating when giving his testimony in court. Dr Hook's concern about the low reliability of Carter's evidence was based mostly on the fact that Carter witnessed the event when suffering from psychosis, rather than the inconsistencies in Carter's statements and evidence. Dr Hook considered that inconsistencies would be expected in many witnesses' evidence whether or not they have an illness, but his main concern remained that Carter's psychotic state "rendered the quality of the information that he was able to convey lower than you would otherwise expect". Dr Hook accepted that this concern applied to some, but not necessarily all, of Carter's evidence. Overall, Dr Hook remained of the view that Carter's testimony was of low reliability.

45. The effect of Dr Hook's evidence of particular relevance is that: (a) acute psychosis disrupts cognitive processes involved in perception, processing, and recall; (b) this disruption does not cease once the psychosis has been alleviated; (c) the effect of psychosis on recall depends on the individual; (d) a person with schizoaffective disorder who is in remission may be capable or incapable of giving accurate evidence – it depends on the individual and their circumstances; (e) Carter was psychotic and hypomanic when admitted to hospital on 4 April 1984 and for several weeks thereafter, including when he gave his statements to police; (f) Carter's police statements do not appear to be as thought disordered as Carter would have been when he gave them; (g) Carter's statements about his delusions were different from his statements about having witnessed a bashing of a person and this would be relevant to his reliability; (h) other evidence would also be relevant to testing a hypothesis of Carter's possible involvement in the event; and (i) the reliability of Carter's evidence, or some of his evidence, would have been low, mainly due to his psychosis when witnessing the event, but there was no evidence of Carter confabulating.

    Dr Brereton

46. Dr William Brereton is a psychiatrist. In his report, Dr Brereton disagreed with Dr Barrett's opinion that it was possible to distinguish between Carter's delusional beliefs and his description of the offence. As Carter was "grossly affected by the symptoms of his mental illness at the time", this would have affected his "perception, interpretation, memory and account of the actual events he witnessed". Dr Brereton said Carter had "experiences that had no basis in reality but was not able to distinguish them from reality. His illness would have affected his cognitive functioning globally and so it would not be possible to distinguish some aspects of his recollections and assertions as unaffected by his mental illness and therefore accurate." This was not to say Carter was "wholly incapable" of providing an accurate account of the events of 4 April 1984, but the "likelihood he was inaccurate is extremely high and there is no way of determining an accurate recollection from an inaccurate one".

47. Dr Brereton said in his report that there had been substantial advances in psychiatry since 1984 in respect of the extent of cognitive impairment and dysfunction in people with schizophrenia. According to Dr Brereton:

    "An individual who was acutely psychotic, as Mr Carter appears to have been at the time of the offence, would have their perception of the world affected by a set of beliefs and assumptions that are delusional (i.e. not in contact with reality) and by direct perceptual disturbance in the form of hallucinations (i.e. a false perception without a stimulus). Individuals can also experience delusional memories, which can include a delusional misinterpretation of a real memory or a memory of an event that did not happen that has delusional significance. It is not possible, in a period of acute illness such as this, for an individual to discriminate between what is real and what is the product of their mental illness."

48. As Carter was acutely unwell at the time of the events on 4 April 1984, Dr Brereton considered Carter's evidence of those events to be "very unreliable", despite Carter being apparently stable at the time he gave evidence. Dr Brereton said that almost the entirety of Carter's evidence would have to be corroborated before he would consider its reliability had been sufficiently demonstrated. He would have "grave concerns about relying in any significant way on aspects of his evidence that were uncorroborated".

49. In oral evidence in chief, Dr Brereton confirmed that the fact Carter had been unwell for about four weeks and not taking his medication before 4 April 1984 led him to believe Carter was psychotic at the time of the offence. Dr Brereton said that, in contrast to Dr Barrett's opinion, when a person is psychotic, especially as severely as Carter was at the relevant time, "their thinking is so disturbed that they don't have an area of thinking and processing that is walled off from the psychosis, they don't have a preserved area of functioning ... so the psychosis is going to affect globally an individual's pattern of thinking ... an individual's cognition is globally affected". Dr Brereton said that over the last 20 to 30 years it has been recognised that cognitive dysfunction is central to schizophrenia, which was not the case in 1984; it is now clear that the cognitive deficits remain when the other symptoms are treated. Dr Brereton considered that almost the entirety of Carter's evidence would need to be corroborated to be accepted as reliable given the severity of his psychosis at the time. In his experience, acutely unwell individuals, as Carter was, have a lot of problems recalling accurately what their experiences have been while acutely unwell, and range from completely unable to recall anything, to patchy memory, to "being able to give you quite a good account of what happened but it not being accurate", leading Dr Brereton to conclude that Carter's evidence was unreliable.

50. In cross‑examination, Dr Brereton agreed that some people with schizophrenia or schizoaffective disorder had good ability to recall events accurately and others did not. Even people with severe symptoms could recall events accurately. The ability to recall depended on several different considerations, particularly the individual themselves. Dr Brereton said that "the findings about cognitive impairment are not universal, so there are some individuals with schizophrenia who have higher than average intelligence and cognitive abilities" and it was possible Carter was giving an accurate account of events. Other relevant factors include: pre‑existing cognitive function; the nature and severity of symptoms; if manic, the amount of sleep a person has had; and the use of drugs and alcohol. Further, the nature of what is being recalled may be relevant, so that a more reliable account could be expected for a simple, concrete, and emotionally neutral event. And as for all people, generally, the more complex the event, the harder it is to recall every detail accurately. A person still in the acute phase of psychosis, however, would be inaccurate in their description of events more often than not. As an individual is treated and their psychotic symptoms resolve and they begin to gain insight, the person might then give a more accurate recollection of events. But that depends on the individual. Once symptoms resolve, the global cognitive deficits generally remain to a greater or lesser extent.

51. For Dr Brereton, Carter's reliability was in issue both in principle (because of the cognitive deficits and perceptual abnormalities associated with schizoaffective disorder) and because of the clinical features (the nature and severity of the delusions and perceptual abnormality with which he presented on 4 April 1984). For Dr Brereton, the issue was not to do with the consistency of Carter's account with other evidence, but that he presented with such a severe illness involving extreme perceptual abnormality, auditory and visual hallucinations, a number of very clear fixed delusions, agitation, and flight of ideas, all of which indicated that his account was unreliable. With the severity of his symptoms, Dr Brereton said it is safe to assume that Carter had cognitive deficits which would affect his perception, processing, understanding, and laying down of memory. Dr Brereton accepted, however, that research showed that people with severe symptoms could have normal or average cognitive levels, but said cognitive deficits are generally present in such people.

52. Dr Brereton then gave evidence in which he said that: (a) not being able to recall details of an event accurately one year later did not indicate a cognitive deficit; (b) to ascertain if Carter suffered from cognitive deficits it would be important to look at what he was able to recall a year later during the trial and to see if it was supported by what other people said; (c) if a person is shown to be accurate in many different aspects of their recollection, that would tend in the direction that the person did not have cognitive deficits from their disorder; and (d) what has been shown to be accurate by other evidence cannot be dismissed merely because the person has schizoaffective disorder, but the parts that are not confirmed must be regarded with suspicion due to the effects of the psychosis.

53. Dr Brereton also gave evidence that when he agreed with Professor Coyle that there is no way of knowing whether what Carter was saying did occur or was an hallucination, he meant there was no clinical way of knowing this. Dr Brereton was not saying Carter was incapable of reliable recall. He was saying only that from a purely clinical perspective, and without regard to other evidence, it is likely that there would have been an event precipitating what Carter said but there was no way of knowing what was accurate and what was not. Third‑party corroboration of Carter's account would be significant to its reliability.

54. In respect of Carter's possible suggestibility, Dr Brereton said that a spontaneous statement was not likely to be affected by suggestibility. It was impossible to say if Carter's statements to police were affected by his potential suggestibility. Further, in his practice, Dr Brereton would consider if a person's recollection of events was connected to or different in nature from the person's obvious delusions in evaluating the reliability of their recollection. Carter's recollections about the event were "very much removed" from his delusions insofar as the event did not have an element of grandiosity about it. The reason Dr Brereton was concerned about Carter's reliability was Carter's inferred perceptual difficulties and abnormalities and the fact that Carter was highly likely to be wrong in a matter of detail. Dr Brereton agreed, however, that a person's reliability could not be measured and there will be factors pointing both for and against a person's reliability. This is so with all people whether or not they have schizoaffective disorder. But Dr Brereton continued to disagree with Dr Barrett's opinion that there was a clear distinction that could be drawn between what was influenced by Carter's psychotic symptoms and what was not so influenced, as this was "way too dichotomous". Dr Brereton considered that he could not be certain of the accuracy of what Carter was saying unless it was corroborated but accepted the same could be said of "a lot of people" without schizoaffective disorder.

55. The effect of Dr Brereton's evidence of particular relevance is that: (a) at 4 April 1984 and for some weeks thereafter Carter was grossly affected by the symptoms of his mental illness and this would have affected his perception, interpretation, memory, and account of the events he witnessed; (b) Carter was apparently stable when he gave evidence; (c) to assess if Carter suffered from cognitive deficits when he gave evidence it would be important to consider what he could recall and if it was supported by other people, as the cognitive deficits and accuracy of recall depend on several factors including the individual themselves; and (d) it is not clinically possible to know if what Carter was saying in evidence was accurate and corroboration of his evidence would be significant in assessing its reliability, but this could also be said of a lot of people without schizoaffective disorder.

    Dr Sugarman

56. Dr Roy Sugarman is a psychologist and neuropsychologist. In his report, Dr Sugarman said that since the 1980s it has become apparent that neurocognitive impairment is a core feature of psychotic disorders. Research about the unreliability of memory in mentally healthy individuals, including because of suggestibility, let alone people with impaired neurocognitive processing, has developed since the 1980s. Mentally healthy individuals can easily come to believe fantasy and can have false memories. Memory generally is a "highly plastic, suggestible, multiply‑encoded phenomenon of which we have to be highly skeptical [sic]" in mentally healthy individuals, and more so in those with severe mental illness.

57. From his review of the available material, Dr Sugarman considered Carter had given "multiple and incredible versions of the subject murder" and was "vulnerable and suggestible" and "desperate to comply" with the police. There was a significant chance Carter's recall would be unreliable and subject to both suggestibility and confabulation. As such, Carter's statements to police may not match the reality of what happened and "nor is the clarity of any such statement congruent with his described neurocognitive incapacity at the time". Dr Sugarman described Carter, from the available material, as "ingratiating, grandiose, compliant, psychotic and suggestible, aware of the need for police endorsement of his value to them and the successful prosecution", with his "presentation in the ward [being] incompatible in all likelihood with a reasoned iteration of the events of the murder", all leading Dr Sugarman to infer that Carter's "final testimony has a high risk of being at odds with the events he actually witnessed and his understanding of them".

58. In oral evidence in chief, Dr Sugarman said that since the mid‑1980s it had been recognised that a core feature of psychotic disorders such as schizophrenia and schizoaffective disorder is cognitive impairment. That impairment remains, regardless of the resolution of more florid symptoms of psychosis, and is found even in first‑degree relatives of patients. The cognitive impairment most affects verbal learning and memory.

59. Dr Sugarman said that he would have no confidence in what Carter was saying "across the board" as Carter "was delusional or at least ill for at least four weeks before the murder" and one would not be able to determine if what he was saying was real or not. Dr Sugarman considered that the view of the police that Carter was capable of giving reliable evidence "flies in the face of all of the medical documentation that he was unable to give coherent histories and that he was prone to rambling and irritability and hallucinations" and was also "over‑compliant". In Dr Sugarman's view, while some of Carter's evidence may be correct, as a witness Carter would be unreliable.

60. In cross‑examination, Dr Sugarman accepted that it was possible but not likely a person suffering from schizophrenia or schizoaffective disorder could witness an event and then accurately recall it, depending on the severity of the illness and many other factors. In the case of Carter, as he had shown signs of illness for four weeks before the event and for four months afterwards, Dr Sugarman would have difficulty in accepting that what Carter said was correct, but agreed it was possible. Dr Sugarman said that "memory is unreliable, for all of us".

61. Dr Sugarman did not look for evidence that Carter was influenced by police when giving answers to their questions. In terms of general processing of memory, Dr Sugarman would "always suggest the machinery of such a person so demonstrably ill, in all likelihood is not accurate".

62. The effect of Dr Sugarman's evidence of particular relevance is that: (a) memory involves a complex process of which we have to be highly sceptical in all people, but more so in a person suffering from schizophrenia or schizoaffective disorder due to the likely cognitive impairments in people with those disorders; and (b) while it is possible Carter was capable of accurate recall, the duration and severity of his illness before and after the event mean this was unlikely.

    Professor Coyle

63. Professor Ian Coyle is a psychologist. In his report, Professor Coyle said there had been an explosion in knowledge about memory since the mid‑1980s. It is now known that memory can be significantly contaminated by post‑event information and by the format and manner of questions asked. It is also now known that assessing the credibility of a person's claim to have observed or experienced something, without collateral information, is usually performed at a "chance level". People with schizoaffective disorder are much more prone to memory deficits than was recognised in the mid‑1980s. They are also more prone to interrogative susceptibility. As Carter was experiencing psychosis at the time of the relevant event, there is no way of knowing if what he claimed to have occurred did occur or whether it was an hallucination. For example, Carter's recall of the deceased being bludgeoned with a barbell was so manifestly wrong that it brings into question virtually everything he claims to have recalled.

64. In cross‑examination, Professor Coyle said that, given his symptoms, it was overwhelmingly likely that Carter's capacity to recall the event would be "grossly affected". As such, it is not possible to be certain about anything Carter claimed to have observed. Where the interpretive process of memory is affected by a disorder such as schizoaffective disorder, the prospect of accurately recalling information decreases dramatically. As what the person is saying cannot be relied upon, collateral information has to be considered. Apart from collateral information to prove or disprove a version of events, "there is no foolproof method of determining whether someone's [ie any person's] claimed recall of events is truthful or not ... you must have collateral information to fully confirm or disconfirm in a forensic context, any particular version of events".

65. Professor Coyle considered it futile to try to identify what Carter did or did not see while psychotic. He accepted that, to the extent Carter's evidence was corroborated, it would be reflective of accurate recall, but this would not mean other parts of his recall had not been altered, affected, or replaced. Professor Coyle said the problem was that we did not know where confabulation stops and reality starts and "never will", except to the extent Carter's evidence was supported by other evidence. As Professor Coyle put it, "was [Carter] capable of having some accuracy in recollection? Yes. What parts were accurate? I don't know."

66. Professor Coyle had never treated a person with schizoaffective disorder. He had been involved in treating people with schizophrenia in conjunction with a psychiatrist.

67. The effect of Professor Coyle's evidence of particular relevance is that: (a) a person with schizoaffective disorder will be more prone to memory deficits and interrogative susceptibility than a person without the disorder; (b) given his symptoms at the time of the event, Carter's recall of it was likely to be grossly affected, and collateral information to confirm or disconfirm his evidence was required; (c) collateral information confirming one part of Carter's evidence did not mean other parts of his evidence were accurate; (d) Carter was capable of accurate recall but Professor Coyle could not say which parts were accurate; and (e) research has shown that, other than collateral information, there is no foolproof method of assessing a person's truthfulness above the level of chance.

    The overall effect of the fresh psychiatric and psychological evidence

68. It is apparent that the concerns of the psychiatric and psychological experts about the reliability of Carter's accounts, including the evidence he gave in the trial, stem from three sources: (a) the fact that he had schizoaffective disorder and was psychotic on 4 April 1984 and for weeks thereafter and, accordingly, was likely to have cognitive deficits affecting his memory; (b) the changes in the accounts he gave over time, as, given (a), he was likely to be more suggestible than people without schizoaffective disorder; and (c) given (a) and (b), the inaccuracies in Carter's evidence and inconsistencies between his evidence and other evidence.

69. The fresh expert evidence unanimously confirms that: (a) cognitive deficits, including deficits affecting memory, are a core feature of schizoaffective disorder; (b) a person with schizoaffective disorder, even if psychotic at the time of witnessing an event, may be capable of giving accurate evidence recalling the event when they are no longer psychotic; (c) whether or not such a person could do so would depend on the individual and numerous other factors including the severity of the person's illness; (d) Carter was severely ill, being both psychotic and manic or hypomanic, before and after the events of 4 April 1984; and (e) Carter was much better and apparently stable at the time he gave evidence.

70. The principal difference between the psychiatrists and the psychologists is that, during cross‑examination, the three psychiatrists, Dr Furst, Dr Hook, and Dr Brereton, each accepted that a person with schizoaffective disorder, if giving evidence when they were not psychotic, may be able to give accurate and reliable evidence about events witnessed when psychotic. They also accepted that such a person could be found to be reliable if other evidence supported their evidence. During cross‑examination the psychiatrists: (a) each accepted that if other evidence supported the evidence of the person with schizoaffective disorder, that could be used to infer that the person was giving accurate evidence; and (b) did not say that no part at all of the evidence of the person with schizoaffective disorder could be accepted to be accurate if there was not other evidence supporting it. The following aspects of the psychiatrists' evidence are particularly important in this regard.

71. Dr Furst:

    "A.… I would never go so far as to say that someone with schizoaffective disorder or any other mental disorder cannot be accepted beyond reasonable doubt, that would be ridiculous.

    Q.Rather than go through all the aspects of the evidence that I say does in fact support what Mr Carter said and supports his reliability, do you agree at least with this proposition: that a trier of fact would be entitled, notwithstanding his schizoaffective disorder, to look at other evidence that supports him and find that he was in fact reliable.

    A.       Yes, I agree with that."

72. Dr Hook:

    "Q.So there are some people who, when they get to the point of remission, will be able to distinguish between an event that they previously saw and misinterpreted or misunderstood, and there will be others who simply are unable to draw that distinction.

    A.       Yes, that's correct.

    …

    Q.And in the course of taking a history or a statement from a person suffering from a schizoaffective disorder and charged with a criminal offence, have you had occasions where the patient has admitted to you that they had in fact done the act of which they're accused.

    A.I'm trying to think of an example that comes to mind. I can easily imagine that scenario. I think that that has occurred.

    Q.I think by your answer you're agreeing that it's not uncommon for a person, even in the acute stages of schizoaffective disorder, to be able to remember and recall that they have done something a week, two weeks, a month before.

    A.       Yes, yes, they can do that.

    Q.       And accurately do so.

    A.       That can happen, yes.

    Q.Some of what they remember may be coloured by inaccuracy but that doesn't mean that they weren't aware that they, for example, punched someone.

    A.       Yes, that's a fair statement."

73. Dr Brereton:

    "Q.So, to look at whether Mr Carter himself suffered cognitive deficits it would then be important to look at what he was able to recall one year later, and what of that was supported by other people, which would tend to suggest its accuracy.

    A.Yes, absolutely, in the parts that were supported by other people. I suppose my concern that I tried to put in the report is that despite that any parts that aren't confirmed you must regard with suspicion.

    …

    Q.And so whilst it might be thought that many people with schizoaffective disorder will have cognitive deficits, if a person is shown to be accurate in many different aspects as to the events on that particular night, that would tend to support that he/she didn't have specific cognitive deficits as a result of their schizoaffective disorder.

    A.It points in that direction, yes, I do see what you're saying, it does point in that direction, it's still hard to say unless you've got some explicit testing, but I agree with what you're saying, I just don't think it's as straightforward as that. I agree it's an indication, it points in that direction, but I wouldn't want to extrapolate too far from that.

    Q.Might it depend on the amount of detail able to be recalled accurately, and the nature of the detail able to be recalled accurately.

    A.I think if he could demonstrate a highly detailed and independently accurate recall of the situation, I mean that does speak for itself in terms of his ability to accurately recall in terms of – I mean again you're still not entirely sure what his underlying cognition would be, but you have to – I suppose that's partly what I was trying to say in my report, you have to – you can't dismiss what has shown to be accurate just because he has schizophrenia or schizoaffective disorder.

    Q.Well, as I understand what you're saying, that would be contrary to common sense, wouldn't it.

    A.       Yes.

    Q.And there might be a risk of unreliability, but if someone is shown independently to be reliable, well then their evidence and their account is reliable.

    A.Is reliable, yes. I just, I suppose what I wouldn't want to say is – here we've got evidence, he's produced a really reliable account, therefore Dr are you saying that he has not cognitive problems? That's not what I'm saying.

    ...

    Q.So, it is actually wrong to say there is simply no way of knowing what he claimed to have seen did occur or whether it was a hallucination because there is a way to work that out and, that is, if someone corroborates an aspect of what he said.

    A.Absolutely. I apologise – I suppose in a way what I should have said was clinically, from a clinical perspective.

    Q.It is, in effect, looking at his account in a vacuum which gives rise to the concerns as to his reliability.

    A.       Yes.

    Q.That is not to say that he is not reliable, it is not to say that he is incapable of reliable recall.

    A.Absolutely, I wanted to make that point in that paragraph.

    …

    Q.… where you have said there is no way of determining an accurate recollection from an inaccurate one, you make that statement in the context of looking at his account without regard to any other evidence at all.

    A.       Yes, from a purely clinical perspective, yes.

    Q.If Mr Carter had walked in off the street and told you this particular account, in light of all you knew about his symptoms, you would not know whether to accept what he said was the truth.

    A.       That is correct, yes."

74. The evidence of the two psychologists, however, included that memory generally (that is, in all people) is so susceptible to influence recollection cannot be assessed as accurate or not at better than the level of chance unless the recollection is independently confirmed. In a person with schizoaffective disorder, which involves cognitive deficits, memory is more likely to be impaired than in a person without the disorder. Given the severity of Carter's symptoms, Dr Sugarman considered it unlikely Carter could accurately recall events, but accepted it was possible. Professor Coyle also accepted it was possible Carter could accurately recall events but considered that no part of Carter's evidence could be accepted as reliable unless it was independently confirmed.

75. None of the experts had been instructed to consider the whole of the material (whether admitted into evidence in the trial or not) relevant to the reliability of Carter's evidence before giving their opinions.[33] To the contrary, it is apparent that while Dr Furst, for example, in his practice as a psychiatrist would consider "external support" in assessing the reliability of one of his patients' accounts, in this case he had focused on five inconsistencies in Carter's evidence rather than the external support for it. Dr Hook accepted that other evidence confirming Carter's account was relevant to, for example, the hypothesis of Carter's possible involvement as a perpetrator of the crime but had not otherwise tested the hypotheses or opinions against the whole of the evidence confirming aspects of Carter's evidence. Dr Brereton accepted that third‑party corroboration would be significant to an assessment of Carter's reliability, albeit he would treat the parts of his evidence that were not corroborated with "suspicion". Dr Brereton, however, did not give evidence of the extent to which his "suspicion" might continue or be ameliorated by reference to those parts of Carter's evidence which had been corroborated. Professor Coyle considered that, even if a person did not have schizoaffective disorder or schizophrenia, "you must have collateral information to fully confirm or disconfirm in a forensic context, any particular version of events". Professor Coyle, however, had focused on the inconsistencies and inaccuracies in Carter's statements, particularly Carter's description of the use of the barbell against the deceased, not the other evidence which supported Carter's statements (including with respect to the possible use of the barbell, as discussed below). Dr Sugarman also had not examined all the evidence which supported Carter's statements.

    [33]R v Bromley [2018] SASCFC 41 at [140].

76. No doubt this is what the Court of Criminal Appeal had in mind when it said that the experts "conceded that if aspects of his evidence were supported by other evidence, this would be relevant to whether his recall was in fact essentially correct"[34]. The psychiatrists did concede this, albeit that Dr Brereton would continue to regard the parts of Carter's evidence that were not independently confirmed with "suspicion". Professor Coyle also conceded this, but his concession was confined to the accuracy of that part of Carter's evidence that was independently confirmed. Professor Coyle alone maintained steadfastly that he would not accept as reliable any part of Carter's evidence that was not independently confirmed. The Court of Criminal Appeal's further observation, that none of the experts had been provided with all of the evidentiary material which supported Carter's account[35], is correct. The Court of Criminal Appeal said that this "significantly diminishes the weight to be given to their opinions as to the reliability of Carter's trial evidence"[36]. This observation cannot be gainsaid insofar as it applies to the evidence of the three psychiatrists. It applies also to the evidence of Professor Coyle and Dr Sugarman as explained in the further observations below.

    [34]R v Bromley [2018] SASCFC 41 at [139].

    [35]R v Bromley [2018] SASCFC 41 at [140].

    [36]R v Bromley [2018] SASCFC 41 at [140].

77. This nuance in the experts' evidence is also relevant to the dispute about the accuracy of the Court of Criminal Appeal's proposition one. It will be recalled that part of proposition one was that "[a]ccounts given by persons suffering schizoaffective disorder may not be reliable absent independent corroboration"[37]. It was submitted for Bromley that the fresh expert evidence was to the effect that "[a]ccounts given by persons suffering schizoaffective disorder are not reliable absent independent corroboration". As discussed, this latter version is the ultimate effect of the evidence of Professor Coyle, but not the other experts. The evidence of the other experts, considered as a whole, accords with the description of the Court of Criminal Appeal (although more will be said about Dr Sugarman's evidence).

    [37]R v Bromley [2018] SASCFC 41 at [38(1)].

78. Because the Court of Criminal Appeal did not separate Professor Coyle's and Dr Sugarman's psychological evidence from the evidence of the other experts, the Court did not need to consider other aspects of their evidence that would be relevant to an assessment of whether their evidence, even if considered in isolation from the psychiatrists' evidence, would be "compelling" under sub‑ss (1) and (6) of s 353A of the CLCA.

79. Professor Coyle had never treated a person with schizoaffective disorder. As a psychologist (unable to prescribe medication), he only treated people with schizophrenia in conjunction with a psychiatrist. According to his curriculum vitae, his relevant specialist areas of clinical and forensic psychological expertise include visual perception and eyewitness testimony, legal capacity, and witness demeanour and detection of deception. This expertise is apparent from Professor Coyle's evidence, which includes his opinion that it has been demonstrated that: (a) memory is "surprisingly malleable" in all people; (b) "assessing the credibility of individuals' claims to have observed or experienced something in the absence of collateral information ... is usually performed at a chance level"; and (c) collateral information is always required in a forensic context to confirm or disconfirm any person's version of events, whether or not the person has any mental or other illness.

80. The evidence of Dr Sugarman, also a psychologist, included that: (a) mentally healthy individuals can easily come to believe fantasy and can have false memories; and (b) memory generally is a "highly plastic, suggestible, multiply‑encoded phenomenon of which we have to be highly skeptical [sic]" in mentally healthy individuals, and more so in those with severe mental illness.

81. Accordingly, the overall effect of the evidence of the psychologists includes that: (a) all evidence based on recall, whether from a mentally healthy person or not, is unreliable in the sense of being far more susceptible to influence than had been previously considered to be the case; (b) without independent corroboration, no trier of fact can discern truth from untruth at better than the level of chance, so independent corroboration of memory‑based evidence is always required; and (c) the difference for people with schizophrenia or schizoaffective disorder is one of degree – they are more likely to be unreliable than a person without the disorder because of both the symptoms of the condition, if active at the relevant time (eg, psychosis), and the cognitive deficits associated with the condition.

    Significance of experts not considering other supportive material

82. It was submitted for Bromley that the Court of Criminal Appeal erred in concluding that the evidentiary effect of the fresh expert evidence was diminished because the experts had not considered the whole of the other material supporting Carter's evidence. According to the submissions for Bromley, this was illegitimate, as: (a) the effect of the expert evidence was that independent confirmation of Carter's evidence in one respect would not confirm that his evidence was accurate in any other respect; and (b) none of the supporting evidence put Bromley at the scene of the offending or directly incriminated him as a person who committed the assault.

83. As explained, the three psychiatrists accepted that supporting evidence generally would be relevant to an assessment of the accuracy and reliability of Carter's evidence overall. Only Professor Coyle said that independent confirmation of Carter's evidence in one respect would not be evidence that his evidence was accurate in any other respect. But, as noted, Professor Coyle held the same view about all evidence based on any person's memory irrespective of the person having any illness. And Dr Sugarman, while of the view that it was possible but unlikely that Carter could give accurate evidence given his psychosis at the time of the event, was also "highly skeptical [sic]" of the accuracy of all evidence based on any person's memory irrespective of the person having any illness.

84. The question being whether the fresh evidence is compelling in the sense of being "highly probative in the context of the issues in dispute at the trial of the offence", and the issue being the reliability of Carter's evidence identifying Bromley as a person who assaulted the deceased on 4 April 1984, the relevant evidence in this appeal includes other material (Karpany's statement to Jennifer Carter – one of Carter's sisters) that could not be admitted against Bromley, but which is relevant to the reliability or otherwise of Carter's accounts and evidence. We do not doubt that this material, in contrast to the additional propensity evidence on which the prosecution also sought to rely[38], is admissible as evidence relevant to Carter's reliability and accuracy of recall which the psychologists and psychiatrists could have taken into account but did not.

    [38]The propensity evidence concerned Bromley's earlier conviction for attempted rape.

    Karpany's admissions to Jennifer Carter

85. The other material included Jennifer Carter's statement that on 8 April 1984 Karpany said to her that "they beat him up too bad and if he went and told the police about it they would get five years in gaol so they picked him up and threw him in the river"[39]. Jennifer Carter also gave evidence in the trial, admitted against Karpany but not Bromley, that on 8 April 1984 she asked Karpany who the fellow he had bashed was and Karpany said "Beau [Carter] had to open his mouth". Jennifer Carter continued, saying "he [Karpany] said that Derek [Bromley] was hitting the bloke and he [Karpany] saw him and he just joined in"; Karpany said this happened "[j]ust under a bridge"; Karpany said they had bashed "[j]ust one white bloke"; Karpany said "they chucked the bottom half of his trousers for fingerprints, they chucked it in the water"; Jennifer Carter asked Karpany why they had done it "and he [Karpany] said that they had bashed him that much that they were looking at five years so they just went all the way" and "Derek [Bromley] wanted to have sex with him [the white bloke they bashed]"[40].

    [39]R v Bromley [2018] SASCFC 41 at [156].

    [40]R v Bromley [2018] SASCFC 41 at [415].

376. The foregoing reasoning was relied upon to permit the Crown to adduce evidence of three classes: first, evidence said to be of esoteric knowledge held by Mr Carter; secondly, evidence said to be of esoteric knowledge held by Mr Karpany; and thirdly, propensity evidence based upon the applicant's prior conviction in 1981 of attempted rape. But for the reasons that follow, and with respect, that reasoning is incorrect.

     Admission of responsive evidence "in the interests of justice"

377. Section 353A(1) of the CLC Act authorised the Full Court to receive and consider evidence which is both "fresh" and "compelling" in the sense in which these words are defined by s 353A(6). Section 353A(1) did not do so for the purpose of determining whether the conviction should be quashed but for the more easily satisfied purpose of determining whether there should be a hearing of a "second or subsequent appeal against conviction".

378. It can be accepted that s 353A is not limited to the tender by an applicant of evidence that is fresh and compelling. It can extend also to the tender of responsive evidence by the Crown that meets those requirements. But it does not authorise the Court to receive and rely upon any new or further evidence from the Crown which does not otherwise meet the express requirements of the provision itself. Section 353A is a gateway provision designed to limit the material that should be considered on a second or subsequent appeal. It would, in that respect, be entirely anomalous and illogical to place upon an applicant the burden of meeting s 353A in respect of fresh evidence, but not the Crown. The language and purpose of s 353A in this respect is supported by its statutory context and history[120].

     [120]See especially South Australia, House of Assembly, Parliamentary Debates (Hansard), 28 November 2012 at 3952, referring to CLC Act, Pt 10. See also CLC Act, ss 332, 337 (as in force immediately before their repeal and re-enactment in Criminal Procedure Act 1921 (SA), ss 142, 147).

379. Provision for the content of "fresh" evidence in s 353A(1) is made in s 353A(6), which relevantly states:

     "For the purposes of subsection (1), evidence relating to an offence is—

     (a)      fresh if—

     (i)it was not adduced at the trial of the offence; and

     (ii)it could not, even with the exercise of reasonable diligence, have been adduced at the trial".

380. The fresh evidence that the Crown seeks to tender on the second or subsequent appeal must also be "compelling" in the sense of being reliable, substantial, and highly probative in the context of the issues in dispute at the trial of the offence[121]. The highly probative nature of responsive evidence from the Crown might derive from its ability substantially to undermine the fresh evidence of an applicant. In rarer cases, responsive evidence from the Crown might have independent and highly probative force. An example of the latter is the circumstance of a recent public confession referred to in Van Beelen v The Queen[122], and relied upon by the Court of Criminal Appeal below.

     [121]CLC Act, s 353A(6)(b).

     [122](2017) 262 CLR 565.

381. Perhaps most fundamentally, the fresh and compelling evidence that the Crown seeks to tender as responsive evidence must also be admissible. The requirement for admissibility is not removed by s 353A(7), which provides that "[e]vidence is not precluded from being admissible on an appeal referred to in subsection (1) just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction". That subsection might arguably permit the Crown to tender fresh and compelling evidence that would not have been admissible under the rules of evidence at the time of trial but which would be admissible under the rules of evidence at the time of the appeal[123]. But it does not abolish the rules of evidence.

     [123]For discussion of the legislative background to equivalent provisions under the law of New South Wales, see Attorney General for New South Wales v XX (2018) 98 NSWLR 1012 at 1027-1032 [73]-[91] per Bathurst CJ, Hoeben CJ at CL and McCallum J. See especially at 1032 [88]-[90].

382. No substantive attempt was made by the Crown, short of "embrac[ing]" the reasons of the Court of Criminal Appeal, to suggest that any of the three classes of evidence upon which it relied met the requirements of s 353A. None do.

     The asserted esoteric knowledge of Mr Carter

383. The esoteric knowledge of Mr Carter concerned his awareness of what had occurred when Mr Docoza was assaulted which was not available to be discovered in the public domain. This knowledge was divided into what Mr Carter appears to have known before the first media publication of the murder, and the period thereafter. For the former period, the Crown relied upon the evidence given of Mr Carter's statements to Ms J Carter, Ms B Carter, Father Pearson and Hillcrest Hospital staff, shortly after the assault and described above. The second period related principally to the information given by Mr Carter to police which helped them locate the site of the assault.

384. We have discussed this pre-trial hearsay evidence above to the extent that it was relied upon by the Crown, and by the Court of Criminal Appeal, as evidence of Mr Carter's state of mind which had not been considered by the experts in their assessment of his psychiatric condition and as evidence of esoteric knowledge with respect to facts surrounding the assault. There was no objection in the Court of Criminal Appeal or in this Court to the use of that evidence for that purpose. Accordingly, we proceeded there on the assumption that the evidence was fresh and compelling when used for that purpose.

385. But, as explained earlier in these reasons, the same is not true of the evidence as evidence of esoteric knowledge tendered for proof of the truth of Mr Carter's identification of the applicant as one of the assailants. Even if we were to assume that the statements were admissible for that purpose, the problem remains that those statements are not fresh. And the statements were not compelling. Indeed, in Ms J Carter's case, the statements had changed over time until 1989 when she recanted them entirely to the extent that they implicated the applicant.

386. Finally, even if the pre-trial hearsay statements were admissible as responsive evidence concerning the interests of justice under s 353A, they do not undermine the cogent and compelling nature of the expert evidence. They establish only that Mr Carter's evidence can be accepted as reliable to the extent that he claims to have been present at the scene of an assault on Mr Docoza. But, as explained above, that matter only strengthens the premises relied upon by the experts for their reasoning that all aspects of Mr Carter's account of the assault that he witnessed or participated in should have been corroborated. The emotionally charged nature of the event at a time when Mr Carter was suffering acute symptoms of psychosis and hypomania, combined with the possibility that Mr Carter might have participated in the assault, strengthens the conclusion that no aspect of Mr Carter's account of the assault could be accepted without substantial corroboration.

     The asserted esoteric knowledge of Mr Karpany

387. The esoteric knowledge of Mr Karpany comprised the statements that he had made to Ms J Carter admitting the assault and implicating the applicant. Ms J Carter gave evidence at trial about these admissions but it was led only against Mr Karpany. As noted above, Ms J Carter also later recanted any suggestion that Mr Karpany had made any reference to involvement by the applicant in the assault.

388. The Crown did not contend that the esoteric knowledge of Mr Carter and Mr Karpany could directly prove that the applicant assaulted Mr Docoza[124]. Nonetheless, it was said that this evidence enhanced the reliability of Mr Carter's testimony, which included his allegation that the applicant had committed an assault. Thus, the Court of Criminal Appeal reasoned that the knowledge had two aspects. The first was that it contradicted any suggestion that Mr Carter's evidence was the product of suggestions from others. Insofar as it is relevant to the present application, the second aspect was described as follows[125]:

     "It proceeds in the following stages.

     −First, the evidence before this Court of Carter's statements to a number of persons in April 1984, and of Karpany's statements to [Ms J Carter] on Sunday 8 April 1984, establishes the fact that both Carter and Karpany had knowledge that a young man had been violently assaulted on the bank of the River Torrens, that clothing had been removed from him, and that he had been thrown into the river.

     −Second, that only a person who had been present could have had that knowledge.

     −Third, the fact that Carter and Karpany had this esoteric knowledge founds an inference that Carter's evidence that there was an attack on the deceased participated in by Karpany is not wholly delusional or wholly unreliable; rather, the occurrence of an attack on the deceased in which Karpany participated is positively supported by that display of esoteric knowledge.

     −Fourth, the above inference also strongly opposes the applicant's contentions that Dr Manock's findings that the deceased died at the hands of another and his exclusion of a natural cause of death are incorrect."

     [124]R v Bromley [2018] SASCFC 41 at [406] per Peek, Stanley and Nicholson JJ.

     [125]R v Bromley [2018] SASCFC 41 at [405] per Peek, Stanley and Nicholson JJ.

389. The fourth stage quoted above from the Court of Criminal Appeal's description is not relevant to the present application before this Court.

390. Even assuming that the alleged hearsay statements attributed to Mr Karpany are admissible to show these aspects of esoteric knowledge[126], it was never submitted by any counsel in the Court of Criminal Appeal, and never suggested by the Court of Criminal Appeal, that these alleged hearsay statements attributed to Mr Karpany could be used beyond the extent to which they were esoteric. The statements could be used against the applicant, the Court of Criminal Appeal said, "because first, [they tend] to demonstrate that Carter's evidence that there was an assault on the deceased participated in by Karpany is not wholly delusional; and second, [the statements] strongly oppose[] the applicant's contentions that Dr Manock's exclusion of a natural cause of death, and his findings that the deceased died at the hands of another, are incorrect"[127].

     [126]cf Kamleh v The Queen (2005) 79 ALJR 541 at 545 [16] per Gleeson CJ and McHugh J; 213 ALR 97 at 101.

     [127]R v Bromley [2018] SASCFC 41 at [424] per Peek, Stanley and Nicholson JJ.

391. If there were any doubt about the unavailability of the hearsay evidence of Mr Karpany's alleged admissions to be used otherwise against the applicant, such doubt was removed by the Court of Criminal Appeal correctly accepting the Crown's concession that Ms J Carter's statement about Mr Karpany's alleged admissions could not be used as evidence that the applicant participated in an assault on Mr Docoza (even apart from the evidence that Ms J Carter had recanted that aspect of her statement in 1989). In this Court, the Crown properly did not take any issue with that reasoning of the Court of Criminal Appeal.

392. The reason that the Court of Criminal Appeal was correct to conclude that the alleged hearsay statements attributed to Mr Karpany could not be used to support Mr Carter's account of the applicant's participation in an assault on Mr Docoza, and the reason that the Crown was correct not to take any issue with that reasoning in this Court, is because that aspect of the statements attributed to Mr Karpany is neither esoteric knowledge nor does it satisfy any other exception to the hearsay rule. If hearsay evidence of Mr Karpany's alleged admissions were admitted to corroborate Mr Carter's evidence of the applicant's involvement in an assault on Mr Docoza, then that corroboration could only be founded on the basis that the admissions are proof of the truth of that involvement. No such exception exists. No party suggested that one existed or should be recognised. This Court should not now recognise an exception, at least not without any submissions on the point.

393. Ms J Carter's hearsay evidence (later recanted) of Mr Karpany's alleged statements about the applicant's involvement in the assault could not be used in evidence against the applicant: the general proposition that applies is that "[w]hat is said out of court and not in the presence of the co-accused is not evidence in the trial of the other accused"[128]. To admit the statements as corroboration of Mr Carter, assuming the truth of the contents of the statements, would be to allow evidence to be admitted through the back door when it could not be admitted through the front. To apply the remarks of Professor Tapper to this context[129]:

     "The reception of such later assertions as testimonial evidence of their truth would have been an obvious infringement of the hearsay rule, and it may have been felt, much as was argued in Blastland, that it would be anomalous to allow in the declarations of intention to prove indirectly what more direct assertions were not allowed to prove."

     [128]Bannon v The Queen (1995) 185 CLR 1 at 22 per Dawson, Toohey and Gummow JJ.

     [129]Tapper, Cross and Tapper on Evidence, 11th ed (2007) at 613-614, referring to R v Blastland [1986] AC 41, see especially at 53 per Lord Bridge.

394. Once the basis upon which the Crown sought to rely upon the hearsay evidence of Mr Karpany's admissions is thus understood, that evidence suffers the same obstacles as the evidence of Mr Carter's esoteric knowledge. It is not fresh. It is not compelling. And, even if admitted, it contradicts part of the evidence of Mr Carter and thus strengthens the conclusions, and the compelling nature, of the fresh expert evidence.

     The asserted propensity evidence

395. The asserted propensity evidence comprised the applicant's conviction in 1981 for attempted rape of a 15-year-old boy in the city of Adelaide. For the purpose of assessing this evidence, the Court of Criminal Appeal summarised the narrative of events at this earlier trial as well as the trial judge's summing up. The Court also received copies of the applicable information, trial transcript and sentencing remarks. In addition, the Crown relied upon affidavits or sworn statements from witnesses who had given evidence at the trial in 1981. The Court of Criminal Appeal briefly described the content of three of these witnesses' affidavits. It also relied upon an affidavit of the then Director of Forensic Science SA who confirmed as correct the evidence given at the trial by a Dr Scott concerning certain blood grouping evidence.

396. The Crown also relied upon an affidavit of Ms Nelson QC who, as Presiding Member of the Parole Board of South Australia, gave evidence that the applicant had admitted that he had committed the crime for which he had been convicted in 1981.

397. All of this evidence was said to demonstrate that the applicant had a propensity comprising the following three interrelated components:

     "(a)     a disposition or proclivity to demand sex from males in public places; and

     (b)      a disposition or proclivity to become frustrated or angry if the sexual advance is rebuffed, and to act on that anger/frustration by physically assaulting the person notwithstanding the advances are made in a public place and there is a risk of detection; and

     (c)      a willingness to act upon that disposition, particularly after the consumption of alcohol and when he is, or notwithstanding he is, in the company of Mr Karpany".

398. If this evidence were admissible propensity evidence, about which we entertain serious doubt, it would have been evidence that could have been, but was not, adduced at the original 1985 trial of the applicant. For that reason, the evidence is not fresh. Nor is it compelling, in the sense of being highly probative in the context of the issues in dispute at the trial of the offence. Much of the probative force of the asserted propensity evidence depended upon an acceptance of the accuracy of the evidence of Mr Carter's descriptions of the assault. But, as previously noted, there is a real possibility that Mr Carter's evidence concerning a sexual advance by the applicant was itself the product of a suggestion by Ms B Carter which, in turn, might itself have been prompted by the applicant's prior conviction. Ms B Carter's evidence was that it was her who had raised with Mr Carter the possibility of an attempted rape by the applicant and Mr Karpany, with her saying that "they are both like that". The admission of the asserted propensity evidence was not highly probative.

     Conclusion on the interests of justice

399. It follows that none of the responsive evidence should have been relied upon by the Court of Criminal Appeal in determining what was in the interests of justice. And, for the reasons set out earlier, the hearsay evidence of pre-trial statements attributed to Mr Carter was admissible only as evidence concerning his state of mind. The fact that the expert witnesses did not consider all of that material does not weigh against the applicant, because that material only provided further support for the experts' conclusions about the extremely unreliable nature of Mr Carter's evidence.

400. It was, therefore, plainly in the interests of justice that the fresh and compelling expert evidence be considered for the purposes of s 353A in a second or subsequent appeal.

     Substantial miscarriage of justice

401. Given the concession properly made by the Crown that if Mr Carter's evidence did need to be corroborated in almost all respects then no case could have been put to a jury, it follows that the trial judge's direction was inadequate. The Crown was quite correct to assume that such an error had the capacity to affect the result of the trial and that it could not be shown that the applicant's conviction was nevertheless inevitable.

402. Even if this case had required demonstration of the higher threshold—that there be a significant possibility that the jury, properly instructed, acting reasonably, and armed with the expert evidence, would have acquitted the applicant[130]—then that threshold would have been satisfied. The Crown was correct to concede in oral submissions that the case "would never get to the jury" if it had been known that the evidence of Mr Carter needed to be corroborated in every respect. The absence of any substantial corroboration of Mr Carter's evidence on the essential facts which the jury needed to accept in order to convict the applicant, as opposed to merely "matters of small detail"[131] of mundane events, plainly establishes that the applicant's conviction was a substantial miscarriage of justice. There is "a significant possibility ... that an innocent person has been convicted"[132].

     [130]Van Beelen v The Queen (2017) 262 CLR 565 at 575 [22], 578 [32], 591 [75] per Bell, Gageler, Keane, Nettle and Edelman JJ.

     [131]See the evidence of Dr Brereton described above.

     [132]Pell v The Queen (2020) 268 CLR 123 at 165 [119], 166 [127] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 531 per Gibbs CJ and Mason J; Chidiac v The Queen (1991) 171 CLR 432 at 444 per Mason CJ; M v The Queen (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ.

     Relief

403. For the foregoing reasons there must be a grant of special leave.

404. There was no dispute that this Court is in the same position as the Court of Criminal Appeal and capable of making any order "as ought to have been [made]" by the Court of Criminal Appeal, including orders by the Court of Criminal Appeal granting permission to appeal and disposing of the appeal[133]. Indeed, the jurisdiction of this Court is to pronounce the judgment which the Court of Criminal Appeal should have pronounced[134]. We would therefore order that: special leave to appeal be granted; the appeal be allowed; the order of the Court of Criminal Appeal of the Supreme Court of South Australia be set aside and, in lieu thereof, an order be made that permission to appeal be granted; the appeal to the Court of Criminal Appeal be allowed; and the applicant's conviction be quashed pursuant to s 353A(4) of the CLC Act.

     [133]Judiciary Act 1903 (Cth), s 37.

     [134]Craig v The King (1933) 49 CLR 429 at 444 per Evatt and McTiernan JJ; Pantorno v The Queen (1989) 166 CLR 466 at 475 per Mason CJ and Brennan J.

405. In all the circumstances, including, for example, the death of Ms J Carter, the loss of the original exhibits, and the time spent by the applicant in prison since 1984, there could be no suggestion of an order for any new trial. None was suggested. In circumstances in which a new trial is not appropriate there should be an order for an acquittal[135].

     [135]See R v A2 (2019) 269 CLR 507 at 565-572 [175]-[192] per Edelman J.