Re-centering dignity in South Australia’s justice system: What I’ve learnt about Derek Bromley

Sarah Moulds

At the heart of human rights law is the concept of human dignity.  This is an inalienable concept that is inherent to every human.  The concept of human dignity can be approached from many different angles - as something that must be recognised and protected by the state, but also as a task that all of us carry with us as humans to demonstrate and share in our daily life.  As Van Tongeren has explained:

“[H]uman dignity is not primarily the basis for a claim against others, but a reminder of our own task. It is not primarily an inviolable fact, but rather an assignment; not a non-destructible foundation, but an easily forgotten or neglected mission.  The fact that humans have an ‘inherent dignity’ does not primarily mean that we are allowed or able to do something, but that we have something to do or should do something.”

When the dignity of another person in our community - even somebody who is very different from us or who may have acted in a way that we consider to be wrongful - is compromised our dignity too is diluted. We have failed our shared task to recognise the dignity of others.

When the institutions and systems we create fail to recognise the dignity of others, or distract us from our dignity task, when these systems seek to cover up or excuse or avoid the task of recognising dignity because to do so would be complex expensive embarrassing or difficult, we again all experience a dilution of dignity. Collectively we fail in our dignity task.

Derek Bromley’s case provides a powerful example of the ways we have failed in our shared dignity task in the context of criminal law, and why we need to activate our shared efforts to reform the systems that permit and ignore mistakes to be made.

In 1985, Mr Bromley was convicted, along with John Karpany, for the murder of Stephen Docoza.  Mr Bromley was unsuccessful in his appeal to the Court of Criminal Appeal in South Australia, and subsequently on an application for special leave to the High Court.  The nature of Mr Bromley’s appeals relate to the reliability and accuracy of forensic evidence produced during his trial, and to the existence of new evidence that is, in his view, highly probative in the context of the issues in dispute at trial.  In other words, Mr Bromley argues that he was denied a fair trial and was wrongly convicted of murder.  His case – and his journey through the criminal justice system – has synergies with other well known wrongful conviction cases including Frits Van Beelan and Henry Keogh.

The concept of the right to a fair trial manifests in many different ways.  It is evident in the traditions and conventions that govern our courtroom, the reverence often expressed through silence that is conveyed not only to judicial officers but also to grieving families and accused persons.  The right to a fair trial is also underpinned by more structured forms of court procedure including long established rules of evidence and obligations placed on prosecutors, who ultimately bear the burden of proving guilt beyond reasonable doubt.

Among these rules and procedures is the duty that is placed on the crown to act as the model litigant in criminal proceedings and to share relevant information with the court.  This is an obligation that is continuing and applies not just during the trial but after the criminal trial has concluded.

Another rule of evidence relevant to the concept of a fair trial is the idea that witnesses should only be able to provide the court with evidence of things that they have seen or heard themselves personally.  They are generally not permitted to talk about matters that they found out about second or third hand. This is often described as the rule against hearsay evidence.

An exemption to this general principle applies when a person is considered to be an expert in a particular area and is therefore permitted to assist the court by providing their expertise about certain matters relevant to the criminal trial.  These experts include forensic pathologists who may find themselves in the position of giving critical evidence about matters such as the cause of a person's death. It is important that such expertise is shared with the court and subject to cross examination by counsel for the accused person.  It is integral to the concept of delivering justice for the families of any victims of crime that the court has before them the best evidence to determine the chain of events that caused harm and loss of life to another person.

However we know that expertise and expert evidence - like all forms of evidence generated and presented by humans -cannot be definitively categorised as always being accurate.  Indeed, as many experts themselves would attest, often the nature of the evidence being presented by expert witnesses in criminal trials is complex, contestable and based on a range of assumptions about factual and other circumstances being considered by the court.  Sometimes, such as in the case of Mr Bromley, Mr Keogh and Mr Van Beelan, expert evidence is given by someone who appears to have misrepresented their qualifications, and who may not have been a credible expert.

Our criminal justice system has developed mechanisms to deal with these challenges, and to protect and promote the right to a fair trial and the dignity of everyone involved in the criminal justice system.  These mechanisms include the presumption of innocence, the burden of proof, the duties placed on the crown prosecutor, and a system of appeals where parties can seek review from higher courts of what they identified to be errors of fact or law.

When this system works effectively it has the potential to deliver both justice and dignity for victims and accused, and when this occurs, it enhances the dignity of all of us in the South Australian community.  But the converse is also true.  When the system fails to identify and address mistakes, when it looks the other way in the face of abrogation of dignity, it not only denies justice and dignity for victims and accused but also detracts from the dignity of all of us.

Mr Bromley knows more than most about the concept of dignity.

He has experienced the criminal justice system up close and has been in custody for decades.  Mr Bromley’s efforts to use the criminal justice system to address the question of the reliability and probity of the evidence relied upon in his criminal trial have yet to deliver justice.  Question marks continue to hang over his case including questions about the extent to which the Crown prosecutors faithfully discharged their duty of disclosure and to act as the model litigant.  For as long as these questions persist, dignity has been denied to both Mr Bromley and to the victims involved.  Dignity is also denied to all of us who rely upon this system of criminal justice to give meaning to the concept of a fair trial.

During his time in prison Mr Bromley has been denied dignified treatment and witnessed the denial of dignity of others in custody.  He has consistently used all the tools at his disposal to articulate the broader consequences for all of us when any one of us is treated as subhuman.

Mr Bromley has reminded me of what is at stake when we prioritise certainty and efficiency over dignity in criminal justice.  He has reminded me that the privilege I benefit from each day will not protect me from the corrosion of the values and principles that underpin the system we have designed to deliver justice. 

Addressing deficits in complex systems is not easy and must be approached from many angles.  We have much to learn from past innovators who have sought to infuse our criminal justice system with mechanisms that can recognise, respond to and remedy mistakes.  This must be ongoing work, shared by all of us. We must be curious about the benefits of new mechanisms that have been successful elsewhere including criminal case review commissions. But we must also recenter dignity within our institutions and public systems, so that we don't forget or get distracted by our privilege.  This is why I remain determined to walk with others towards the enactment of a Human Rights Act for South Australia that would serve as a reminder of the inherent in in a liberal dignity we all share as human being, and the responsibilities we must hold each other account for. 

A Human Rights Act would set out our shared values – including our commitment to a fair trial, but also our commitment to equal access to other important common good such as housing, health care and education. It would remind and require law makers, and government decision makers, to consider our dignity before they make laws or exercise power.  And perhaps most importantly, it would help stop individuals falling through the gaps in our system. 

We know lots of South Australians want a Human Rights Act because they told a parliamentary committee earlier in 2025.  Every member of that committee – from all sides of politics – agreed that we need this type of law. I’m not sure what the Government is waiting for – but it’s absolutely time for South Australia to put dignity back in the centre of our systems and institutions. Its not just our values, it’s our task.

You can join the call for a Human Rights Act for SA here.