No Appeal if you're Aboriginal

for the last thirty five years in Australia. He's maintained his innocence that entire time, and all the evidence suggests that his innocence is valid and his maintaining of his innocence is reflective of what happened that night, that he is not guilty of the murder he is convicted of. As we spoke about, Derek had recently been rejected by

the Court of Criminal Appeal in South Australia. At the time when we reported on the case, we really hadn't had a chance to explain or look at exactly why the court had refused to uphold Derek's appeal and grant him a chance at a new trial. Now, after a couple of months, we've been able to look at what happened in the Court of Criminal Appeal, but more importantly we've had a chance to read some more of the work of doctor Bob Miles from Flinders University, who has

followed this case. Is an expert in proving the innocence of individuals and examining wrongful convictions and particularly at understanding where forensic evidence breaks down. And Doctor Miles has had some things to say about Derek's case and the rejection of his appeal that I think are very timely and need to be raised, both in relation to Derek's case but also that of Kevin Henry. As Doctor Moles explains, in twenty thirteen, South Australia enacted a new statutory right

of appeal. It was the first major change to appeals rights in Australia for one hundred years, and both because of the work that doctor Moles has done, the work we've done on this podcast and is now being done right around Australia. It is quite clear that a large number of prisoners are innocent and clearly have been over the previous one hundred years, who have never had a chance to prove their innocence in a court of law.

They're not asking simply to walk free. They're asking for a trial where all the evidence is presented and experts with valid qualifications are called. That's all they're asking for and they say that will prove their innocence, so why not test it. But as Doctor Moles also points out, the recent decision rejecting Derek Bromley's case has not only invalidated this new appeal right, but also raised questions about

rights of appeal in Australia completely. As we mentioned, when Derek went to the Court of Appeal, eight experts, including two experts brought by the Crown, all agreed in their reports that significant errors had been made at Derek's initial

trial in regards to the evidence that was presented. But despite this, despite all these experts both for the defense and the Crown, agreeing that significant errors had been made, the appeal judges said that even after a careful review, they could satisfy themselves that Bromley was actually guilty of

the offense. What throws this into further disregard is the fact that, as we've spoken about on this podcast a number of times, the forensic pathologist who performed all the pathology work in Derek's trial was one doctor Mannock, the now disgraced former head of forensic pathology in South Australia, who it is also questioned whether he even has the appropriate or ever held the appropriate qualifications to be a

forensic pathologist. So the errors that he made was significant, and it was these errors largely that allowed for Derek to be placed at the crime scene and for it to be possible for Derek to have committed the crime when you know the record of doctor Mannock, as we've previously spelled out, case after case where he has been involved, has been shown that he has got the forensic work

completely wrong. As all the experts in this new appeal said significant errors were made, and yet Derek has spent thirty five years in prison despite all the experts today saying significant errors were made. There's also the issue that the lead witness against Derek was someone who suffered from schizophrenia, who was known to lie, who it has been demonstrated, was very susceptible to manipulation by law enforcement and those

trying to get Derek Bromley. And as we've explained in the past, and you need to listen to this in the other episode, the police had a reason to be going after Derek, and that's because he helped expose the rotten, corruption and violent conditions in a prison in South Australia. But what is most troubling about Derek's appeal and the decision of the judges.

at Derrek's original trial. The truth is that evidence can't be substantiated, there is no weight to it, and it should never have been allowed in the appeal. This is not what the appeal is supposed to look at. It was supposed to look at fresh and compelling evidence that would grant Derek a new trial. Fresh and compelling evidence was provided by eight experts, two of whom were for

the Crown. All agreed significant errors had been made. The fact that the Crown then resorted to bringing in this new evidence, and that the judge has allowed it, will now be of review by the High Court. This is something we hope the High Court takes very very seriously, and a tactic that should not survive because it throws into question the possibility of having a fair trial at all. Of being able to have a retrial or a trial

in front of a jury of one's peers. If every norm can be broken simply to secure a conviction, above all the errors made in Derek's case, Above all the evidence that shows he is innocent of this crime. The fact that he spent thirty five years in prison where both sides agree significant errors were made, where the chief forensic pathologist had no qualification to be in that courtroom, and has been shown to get forensic report after forensic

report wrong, is an outrage. Derek Bromley should be freed tomorrow. The fact is, though he will require the High Court to step in and ensure all Australians are able to get a fair retrial and an effective chance at appeal. What makes this even more galling is that others have been released because of doctor Mannock's dodgy work. They include Henry Keoh, whose conviction was quashed on December nineteen, twenty fourteen.

There is far less compelling evidence against Derek than there was against Henry, and yet Henry was rightly freed and his murder conviction overturned. More so, Henry was paid compensation in the way of two point five million dollars. Yet Henry has not served and did not serve anywhere near the time Derek has served. Henry and as we say again, should have been freed but didn't have the overwhelming weight

of evidence in his favor as Derek does. So why does a black man who has served thirty five years in prison remain there when others walk free? Today? I think we get further answers when we look to New South Wales. It was announced by the Attorney General that Kathleen Folbeg, who was found guilty of over the deaths of her four children, would have her case subject to

an inquiry. This is the sort of inquiry we've been calling on for Kevin Henry, and also that should examine all the cases of people serving significant sentences of decades and decades where they maintain their innocence and there are doubts as to the forensic evidence. In the case of Kathleen Folbeg, all four of her children died as infants. In two thousand and three, she was found guilty of the murder of three of her children and the manslaughter

of the fourth. She's always maintained they died of natural causes. She's currently serving a minimum of twenty five years behind bars. But new forensic evidence suggests it is possible for a single family to have multiple deaths attributed to natural causes of children who are infants. Now, I don't know the forensic evidence well enough to make a call on this one way or the other, and I don't offer any

opinion as to miss Folbegg's guilt or innocence. What I do say, however, is that given there is new forensic evidence now saying what was previously presented as forensic fact is now at least doubtful, if not wrong, then an inquiry has rightly been called. The Attorney General said that it was with immense difficulty that this decision was made.

But why is it so difficult for anywhere in Australia, any jurisdiction, whether it's South Australia with Derek Brom or in New South Wales with this case, for the justice system to be willing to do some self reflection and see if they've got it wrong in the past, particularly when we are talking about forensic science. We know forensic

science is a fast moving field. We also know significant mistakes are made, as we've explained in the past the state of Illinois, for example, completely scrapped the use of the death penalty because twenty five percent of all men on death row in Illinois were found to be innocent when a review of their cases was conducted. A quarter of the men who were about to be executed had

in fact not committed any crime at all. More of those men that were on death row had serious doubts rays as to whether they'd committed the crime because of new evidence. So once again in New South Wales we at least have the willingness of an inquiry to be called. And it's hard not to think this didn't come on the back of the ABC's Australian story into the case of Miss Folbig. Now what this inquiry determines, I honestly have no idea. Again, I offer no opinion as to

her guilt or innocence. I can only hope that the inquiry gets to the truth. Four young children have died and they deserve justice, and so does their family. If Miss Folbig has been wrongfully convicted because of bogus science, she deserves to be released. If the forensics was correct in her initial trial, and modern forensic pathologists using the latest technology determine that well, then her sentence will remain.

But you have to ask why is Kevin Henry not granted this same opportunity, remembering there is far less doubt about the forensics in Kevin Henry's case in Miss Folbigg's and I need to say this purely for the education and information of our listeners. Miss Fahlbig is a white woman in New South Wales. Kevin Henry, like Derek Bromley, is aboriginal. Kevin Henry, like Derek Bromley, sees other people

released when they have more evidence proving their innocence. The forensic evidence that is up for debate in Miss Folbigg's case, and it will be subject to an inquiry over the next six to twelve months, is complex. The forensic evidence against Kevin Henry simply does not exist. What forensic evidence there is, as we have demonstrated quite clearly in this podcast, proves Kevin Henry could not have committed the murder of

Linda could not have committed. In fact, not a single piece of forensic evidence was offered up at Kevin's trial to show he committed the murder, not a single piece. What was presented was wrong anyway, remember as well, not a single witness was called that saw Kevin Henry commit

a crime, not one, and that is not disputed. So why in South Australia has a white man been freed and paid two point five million dollars in compensation while Bromley, an Aboriginal man in South Australia, has had his appeals rejected despite more compelling evidence. Significant errors was the statements of all laid experts in Derek Bromley's appeal. Why in New South Wales, where there is evidence towards both innocence and guilt in the case of Miss Folby, is there

an inquiry into her case? But in Queensland for Kevin Henry, where there is no doubt as to the forensics pointing to his innocence, there is no such inquiry. Two Aboriginal men no justice, two non Aboriginal Australians getting justice. That is why we started curtin the podcast. That is what we hoped we wouldn't prove, but what we thought would be the case that other innocent Aboriginal people are in prison, men and women. The proof of today's episode is not

that they're not innocent. Derek Bromley and Kevin Henry are innocent men. The proof is that every state in Australia and the Commonwealth of Australia refuses to even look at the evidence against either Derek Bromley or Kevin Henry. And I put it to you the reason they will not even let that evidence in court, evidence that, if they were so sure was accurate, would show these men to be guilty, is because they know it shows them not to be guilty and proves what we have said from

the first episode of this series. Kevin Henry is an innocent man and joining him in South Australia is innocent man Derek Bromley. It's time both of them got inquiries into their cases and the sooner they walk free the better. That was Curtain the podcast