In 2013, South Australia enacted a new statutory right of appeal, which was the first major change to appeal rights in Australia for more than 100 years. It was done because Flinders University research showed that the existing appeal rights were woefully inadequate.

The recent decision of the appeal court in Bromley’s case has not only threatened the viability of this new appeal right, but, if left as it is, will radically transform the right of appeal in Australia to a right of retrial before appeal court judges.

There were eight expert reports introduced in Bromley’s appeal, including two by the Crown’s experts. They all agreed that there had been significant errors in the way in which evidence had been presented at the trial. However, the appeal judges said that by a careful review of the evidence at trial, they could satisfy themselves that Bromley was actually guilty of the offence for which he was charged.

Apart from the fact that the type of errors identified by the experts were not amenable to that response by the judges, their general approach could be seen to be part of a standard tactic used in criminal appeals. However, what they did next was extraordinary.

The judges then allowed the Crown to present further additional evidence, to show that Bromley was guilty of the crime subject to the appeal. This evidence consisted of a prior conviction which they said showed Bromley had a propensity to commit that type of appellant’s guilt of the offence. The obvious question is to ask why the prosecution had not used this important evidence at the time of Bromley’s original trial.

If this tactic survives review by the High Court, the appeal court would have effectively abolished the right to a jury trial, the right to a retrial, and the right to an effective appeal – all without any statutory or other legal authority.

Further details of this case can be found at the Networked Knowledge Derek Bromley Homepage and Miscarriages of Justice project page at Flinders University.