31 January 2014 - Update report by Robyn Milera and Derek Bromley

To Whom It May Concern
15 January 2014 – updated 31 January 2014
RE: MR DEREK BROMLEY
BRIEF BACKGROUND1
In 1984 Mr Derek Bromley was convicted of the murder of Steven Dacoza in Adelaide and
sentenced to life imprisonment with a non-parole period of 22 years, 7 months, 12 days
(adjusted on 31/7/94).
He has consistently maintained his innocence in regard to that charge. Legal advocates have
expressed concerns, since the mid 1980s, that a miscarriage of justice has occurred. In the meantime Mr Bromley exhausted appeal 2 rights under pre-May 2013 law and his petitions3 to the
South Australian Governors failed to result in referral of his case to the court of appeal.
In May 2013 a new statutory right of appeal was implemented when the South Australian
Parliament passed the Statute Amendment (Appeals) Act 2012. An application for legal aid was
lodged with the Legal Services Commission the following day on Mr Bromley’s behalf and
eventually denied. In June 2013 the Federal Attorney-General’s Department made an offer of
funding to cover an appeal against Mr Bromley’s conviction. The appeal is currently being
prepared.
Mr Bromley’s focus has always been on clearing his name.
His non-parole period expired 7 years ago. Since then he has made several applications to the
Parole Board for a recommendation for release. His emphasis has been on accessing resocialisation activity because he is keenly aware that he has been in prison for a very long time.
He is motivated to succeed in his re-integration with the community and feels that substantive
experiences such as employment and visiting family on the outside would help him greatly in
making that transition. This desire accords with the mission expressed by the South Australian
Department for Correctional Services (DCS) and its stated goal of improved outcomes for
Aboriginal people.4
CURRENT SITUATION
He is now in his 30th year of incarceration for a crime he maintains he did not commit. Remorse
for a crime is understandably viewed as a positive step in rehabilitation, but there is no protocol
for dealing with persons who refuse to make a false confession for the sake of release. In fact the
system seems to hold special scorn and produce longer and harder time for a person who will not
confess to the commission of an offence. The Attorney-General, Hon John Rau recently conceded
that being imprisoned for a crime that you did not commit, ‘…would be terrible.’ 5 It is a concept
that any reasonable person would identify as unjust and indeed terrible. A person such as Mr
Bromley, at least has a reasonable expectation of relief through a statutory right to be considered
for release on parole after a date set by the court. To reach that date and then be subject to
incomprehensible denial year after year compounds the damage and suffering he has endured
for more than half his life.
See Dr Robert N Moles, ‘The Derek Bromley Homepage’.
Bromley v The Queen 1986 HCA 49.
3 ‘Petition of Derek Bromley to His Excellency Rear Admiral Kevin Scarce AC CSC RANR Governor of South
Australia’; ‘Petition of Derek Bromley to Her Excellency Marjorie Jackson-Nelson, Governor of South
Australia’ (part one); Petition (part two).
4 <http://www.corrections.sa.gov.au/home/mission-vision-values>.
5 Channel 7 Today Tonight (Adelaide), 28 March 2012; see edited transcript and link to video of program.
1
2
1
Considering the history below, it would appear that Mr Bromley is being held in an indefinite
holding pattern. After his most recent interview with the Board on the matter of this year’s
application for release, Mr Bromley was given cause to have reasonable expectation that he was
going to be recommended at last. His hopes were put on hold upon the news that the Board
would delay a recommendation apparently in anticipation of a DCS refusal to transfer him to the
APC.
This is puzzling as the DCS Policy in regard to Reintegration for Life Sentenced Prisoners dictates
that consideration of transfers to the APC will take place at such time as the Board has decided to
recommend release on parole to the Executive Government. The DCS noted Mr Bromley’s
positive progress at Cadell and advised that, should the Board go ahead and make a
recommendation, as it had indicated it would be likely to do, a special case review would be
undertaken. This would be for the purpose of assessing Mr Bromley’s suitability for placement at
the APC including a review of his pre-release needs.
The Correctional Services Act 1982 (SA) s68 (1)(b)(i)(A)(B) provides for the Parole Board to
recommend, as a condition of release of a life sentenced prisoner, residence at a specified
premises to undertake activities and programs to assist with reintegration for up to one year.
The Parole Board has asserted that Mr Bromley, ‘cannot be transferred to Adelaide Pre-Release
Centre at this stage.’ In the absence of some other, as yet undisclosed reason, it would seem the
only reason he ‘cannot be transferred’ is the Parole Board’s refusal to recommend him. Despite
the communication to Mr Bromley that the Board considered him an excellent candidate for a
recommendation and the apparent absence of significant reservations, his application has in
effect failed.
As the history below indicates, the parole issue has been continually frustrated by the Board’s
insistence on re-socialisation of the level only accessible by placement at the APC and the
Department’s refusal to place him there. We thought the hopeless catch 22 had finally been
resolved and the way was clear for the Board to trigger a positive process. However, on 12
November a decision was made to defer consideration of his application for a full 12 months.
This means that he cannot be considered for the necessary transfer and re-socialisation. Taking
into consideration the time for processes at the end of 12 months, the deferral could represent,
conservatively speaking, another 18 months before a recommendation is made. Time will further
extend to allow for the special case review. There is no way of predicting the time the Governor
in Council will take in making a decision to approve or disapprove any recommendation. (ss 67
(6), (7) of the Correctional Services Act 1982 (SA)).
The parole application history (attached) also indicates Mr Bromley’s efforts have been excellent
and sustained in so far as his progress has depended upon himself. This latest deferral, from our
point of view is an incomprehensible and demoralising blow. Our opinion is that it is a decision to
not make a decision that results in unreasonable delay and an obstruction to available processes
toward re-socialisation for a man who acknowledges his need of assistance in preference to
immediate and unsupported release. In addition we feel that there is something amiss in the
supposed independent status of the Board. As an independent statutory body, it does not seem
right for it to modify its assessment of Mr Bromley’s fitness for a recommendation in anticipation
of future placements. Placements are a decision for the DCS, which the deferral has effectively
blocked.
Francis Nelson QC, Presiding member of the Board, is quoted as commenting6, ‘Until recently, his
behaviour in prison has not been good. There’s work to be done before he’s ready for release.”
The first section of this comment is confusing as Mr Bromley’s behaviour has been commended
and supported by reports and reviews for many years. The Board has not expressed an issue
with it other than in the context of his recognised need of re-socialisation. Of course there is work
to be done but Mr Bromley is powerless, for lack of opportunity, to do anymore without
assistance. Recently the DCS commended him for his progress. A thoughtful reading of the
Mark Whittaker, ‘I didn’t do it, I wasn’t there’ Good Weekend Magazine, The Saturday Age, December 21,
2013, 21; >.
6
2
history below will demonstrate that he has done as much as he can to help himself but his
progress is continually hampered. The ‘work’ to be done is for the Board and the DCS.
The backdrop to all of this is Mr Bromley’s pending appeal against the conviction. A reasonable
consideration of all the circumstances ought to support a finding of urgency for re-socialisation,
not this devastating delay. We ask the reader to ask, “What if I or a loved one was in this
position?”
Discretions are acknowledged as a relevant safeguard to public interests but the possibility of
parole provided by the Correctional Services Act 1982 (SA) indicates a parliamentary intention to
regard the interests of prisoners as well. Surely the discretions ought to operate with
reasonableness in all the circumstances and with consideration of the implications for basic
human rights.
We note that the Government is well aware through various means of communication and media
expositions, that Mr Bromley’s case is one in which a possible miscarriage of justice has occurred.
His case is one of those referred to in a submission to the Legislative Review Committee set up to
consider a bill for the formation of a Criminal Cases Review Commission in South Australia. This
submission was formally published by the Parliament.
The present government is well aware of the problem with Mr Bromley’s case. This fact
exacerbates the injustice of his present treatment. The government’s contentment with
bureaucratic decisions, unnecessarily prolonging his incarceration and effectively denying
substantive re-socialisation, is negligent. Inaction would be inconsistent with the community’s
expectation that a responsible government will prioritise the protection of human dignity and
liberty in the making and administration of laws.
This submission is not an argument for automatic release on parole, it is a call for the proper
administration of law and policy which provide for the recommendation for release of life
prisoners who have:



been provided every reasonable possibility within the prison system to improve and
prove their fitness for release, and
been empowered to participate in substantive re-socialisation according to their needs
for successful community integration, and
satisfied the Parole Board of their fitness after consideration of all the relevant
information.
Mr Bromley, through no fault of his own, has been frustrated and discriminated against at every
turn since he became eligible for parole.
We appeal to members to raise Mr Bromley’s situation before the South Australian
Parliament calling on the government to review his treatment and resolve this deadlock.
We further urge the immediate parliamentary scrutiny of present law 7 that gives the
executive arbitrary power to continue the incarceration of prisoners eligible for parole. This
power operates despite the expert recommendations of the Parole Board and the lack of
statutory criteria for an executive assessment of the readiness of an individual for
conditional release. The law interferes with the processes of the court in an action for
judicial review. The law offends the doctrines of the rule of law and the separation of powers
underpinning the Australian Constitution.
7 Correctional Services Act 1982 (SA) s 67(7), (7a)-(7c).
3
APPLICATIONS FOR PAROLE
The following summary is written with direct reference to the reasons for refusing parole
provided to Mr Bromley dated 28 September 2009, 3 May 2011 and 27 June 2012.
Mr Bromley’s sentence plan in 2005 provided that he should be moved from Port Augusta Prison
to the Adelaide Pre-Release Centre on the 12 of December 2006, for the final 12 months before
the expiration of his non-parole period.
26 April 2005 -Interview by the Parole Board – annual review:




Mr Bromley readily agreed that he required substantial re-socialisation in order to
succeed upon release on parole.
The Parole Board recommended extended rehabilitation at APC.
The Prisoner Assessment Unit did not approve the transfer but committed to provide
priority psychological intervention and expressed a necessity that Mr Bromley
undertakes certain programs.
Social worker’s report – overwhelmingly positive.
14 March 2006 - Interview by the Parole Board:



The social worker’s report noted that the ‘priority’ psychological intervention had not
been provided.
The Department of Correctional Services chief executive advised that Mr Bromley’s
achievement of the necessary security rating for transfer to APC depended partly on the
completion of offence-focused programs. (All required programs have been completed
without Mr Bromley compromising his claim of innocence in regard to the charge of
murder).
Violence Prevention Program report:
 Previous assessment of high risk of reoffending, not as high as previously
thought.
 Has dealt adequately with stress while in prison.
 Need for structured planning regarding his reintegration needs and an extensive
period of assistance developing skills.
10 April 2007 – Annual review:
 The Board recommended transfer to the Mulga accommodation at Port Augusta prison.
12 December 2006 – Mr Bromley was eligible for release on parole.
16 July 2007 – Submitted an application to the Parole Board for release of parole.


Program report:
 High level of motivation and commitment.
 High level of insight … consistently open to discussion…significant reduction in
risk factors.
 Engaged with openness to change.
 Excellent role modelling for other participants.
 High level of effort in completion of the program tasks.
Manager Interventions report:
 Prisoner Bromley has progressed as far as he can at Port Augusta prison.
 Case review recommended a placement at the APC in order to commence
arranged volunteer work, courses and day leaves with family –
recommendations requiring endorsement.
 Positive attitude – work reports and core program participation.
4



Looking forward to further re-socialisation activities at the APC that will
prepare him for release.
Participation in weekly counselling sessions.
Considerable changes in his thinking and attitude to his ultimate return to
society.
9 October 2007 – Parole Board annual review.





Board advised that the current sentence plan was for transfer to APC and participation
in the Violence Prevention Program.
Discussion of possibility of completion of the program if he were released. Mr Bromley
indicated he would prefer to remain in prison pending some re-socialisation.
Submission on program participation indicated enthusiasm and high level of success.
Discussion of the limitations of re-socialisation at the Mulga Cottages (Port Augusta).
The Board recommended he be considered at the earliest opportunity for transfer to the
APC.
6 November 2007 – Transferred to the APC.
17 December 2007 – Commenced community VPP program.



Interim report by the Rehabilitation Programs Branch (RPB):
 Recognition for assuming responsibility for past behaviour and demonstrating
insight into its causes.
The Board conveyed concern to the Prisoner Assessment Unit (PAU) that there had been
no change to his security status, which meant that he was still not getting any resocialisation.
PAU required completion of the program.
11 August 2008 – Completed the required program – RPB report noted:





Participation in exercises and discussions to a satisfactory to good level.
File information suggests no involvement in any violent incidents since mid 2004.
Risk of re-offending regarded as reduced post treatment.
His ongoing risk would likely reduce in time should he continue to maintain current
gains when exposed to more situations, particularly within lower security environments.
RPB report recommended:




Mr Bromley should be considered for reduced security status to low 2 regimes
at the APC – reflecting his ongoing rehabilitative efforts and need for resocialisation.
Psychological intervention.
Encouragement to develop relevant work skills and employment skills.
Assistance to further develop personal/community support linkages.
4 November 2008 - Mr Bromley was transferred OUT of the APC on the basis that he may
have committed an offence.



He was cleared of any wrongdoing.
Another inmate made a confession of responsibility in relation to the offence. All charges
against Mr Bromley were dropped.
Institutional reports concerning him continued to be positive. Despite this he was
removed from the APC to the Yatala Labour Prison.
5
28 April 2009 – The Board deferred his application for release on Parole.
1 June 2009 - The Manager of the PAU disapproved Mr Bromley’s return to the APC.

The Parole Board was advised that the Director of the PAU had made a decision to not
resettle Mr Bromley at the APC and that he would not vary his decision. Reasons were
never provided.
9 June 2009 – Mr Bromley was sent back to Port Augusta Prison.




This meant that his previously approved re-socialisation opportunities were
discontinued.
He went from positive preparation for release to six months’ incarceration in the Yatala
Labour Prison and then a return to Port Augusta Prison (PAP)with no communication as
to reasons for the reversal in his progress. This was cruel punishment and without
justification.
During at least some of this period in PAP, there was no apparent case management plan
in place. He did have time in the Mulga cottages at PAP but this gave him no resocialisation of the kind that would satisfy the requirements of the Board. He followed
every process open to him at that facility but there were no further reintegration
programs available that could satisfy the requirements of the Parole Board or
significantly address his needs.
There was no indication that the RPB recommendations had been implemented.
28 September 2009 - The Parole Board refused application for release on parole again.
 Still waiting for him to receive appropriate, sustained and effective re-socialisation.
Quoting the page 8 of the Reasons for Refusal to Release:
“It is ironic that Bromley’s assessment of moderate risk of reoffending is maintained,
despite his efforts to reduce his violent lifestyle and behaviour within the prison environment, on
the basis that he has not yet been exposed to any relevant high risk situations which preceded
past violent behaviour in the community. Hence, his security status precludes re-socialisation, but
until he has re-socialisation he cannot be exposed to incidents which might provide a proper basis
for reduction of his security status. THE PRISON SYSTEM SHOULD STRIVE TO FIND A WAY TO
BREAK THIS STALEMATE.” (capitalisation added) “…the Parole Board requests that the numerous
recommendations which have been made for Bromley’s rehabilitation, including re-socialisation, be
implemented.
3 May 2011 – The Parole Board refused application for release on parole

Noted regular contact with Aboriginal Liaison Officer, social worker and psychologist
while at Mulga Cottages.
 A reduction in his security rating
 On-going good behaviour
 He recognises need for basic skill training
 Has been receiving significant support from his family
 Family has communicated with the Parole Board to emphasise their support
Also notes:
 HE HAS NOT RECEIVED SUFFICIENT RE-SOCIALISATION FOR THE PAROLE BOARD TO
BE CONFIDENT TO RECOMMEND HIM.
 The Board commends his efforts.
6
May of 2012 - Further application refused








DCS had not provided the kind of re-socialisation opportunities that had been
consistently requested by the Parole Board as a precondition of a decision to
recommend him.
No other impediments to recommendation were referred to in the reasons for refusal.
Once again there was nothing he could do to improve his position.
Positive institutional case notes particularly in relation to his work ethic and
interactions with staff and inmates.
Commends Mr Bromley of his efforts.
Has completed all core programs.
Maintains genuine commitment to engage in any available activities or programs.
Actively helpful in liaising between staff and inmates.
Consistently courteous both to prisoners and to staff.
Recommendations in the reasons for refusal:



Strongly recommends that the DCS make all necessary opportunities appropriately
available for re-socialisation
He should be considered for placement at the APC
He may reapply after 21st of May 2013 within which time the Board hopes the DCS will
have been able to make available to him the necessary reintegration and re-socialisation.
September 2012 – transferred to Cadell Training Centre


This transfer has been very positive in many ways. However the Parole Board still
appears to require placement at the Adelaide Pre-Release Centre as a precondition to a
recommendation. This placement remains at the discretion of the DCS on the
precondition of a recommendation of release. The catch 22 continues.
On two occasions he has been invited to apply for extended activities. On both occasions
his applications were immediately denied and no reasons have ever been provided to
him. He participates positively in all other opportunities available at Cadell.
20 May 2013 - Most recent application for release on parole.
6 September 2013 – Interview in regard to application.

The Board deferred its decision awaiting advice from the DCS.
12 November 2013 - Reconsideration of the application and decision to defer for a further
full 12 months.

As of 15 January 2014 no valid reasons have been provided for the decision to defer the
consideration. There is a statutory obligation to provide reasons for refusal to a prisoner
within 30 days however. This date has passed so the deferral amounts to a refusal but
avoiding the otherwise mandatory provision of reasons.
Mr Bromley gets regular visits and is consistently supported by good friends and family on the
outside. In fact he has a level of family and community support that is extraordinary.
Robyn Milera
Derek Bromley
7

Download Report