MILAT [2006] NSWSC 1391

SOLICITORS : Applicant in person Crown Solicitor's Office of NSW

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

72007/06 MILAT, Ivan Robert Marko S 474D APPLICATION

JUDGMENT 1 HIS HONOUR: Ivan Robert Marko Milat has applied to the court for an order under s 474D of the Crimes Act for an inquiry into his conviction for one count of detaining for advantage and seven counts of murder. He has asked for an order referring the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act (see Crimes Act s 474E(1)(b)). 2 This is the second application under s 474D made by the applicant. The first application was considered by Barr J and, in a judgment published on 27 October 2005, his Honour determined that the application should be refused. In the course of his Honour's reasons he said: "The procedure under s 474D of the Crimes Act is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted. Where the matter raised in such an application has been fully dealt with in proceedings giving rise to the conviction, whether on appeal or otherwise, the court may refuse to consider or otherwise deal with the application; s 474E(3). It seems to me that for the most part the matters raised in this application have been dealt with at trial and on appeal. However, since some arguments have been put in the application which may possibly be different from arguments put elsewhere, I have considered it. I have no unease and no sense of disquiet in allowing the conviction to stand. No doubt or question about the guilt of the applicant arises on the material he relies on." 3 The applicant made extensive submissions in the application considered by Barr J. His Honour's distillation of those submissions disclosed the following ground on which the applicant sought his order: "A miscarriage of justice occurred because the trial judge altered the Crown case after the close of evidence in a manner that lost the applicant a chance fairly open to him of being acquitted. This defect in the conduct of the trial was not given due weight by the Court of Criminal Appeal whose judgment therefore lacked integrity. The High Court of Australia failed to recognise that fact and erred in refusing special leave to appeal." 4 The grounds advanced in the earlier petition were stated by the applicant as follows:

"1. The petitioner submits his convictions were the result of a substantial miscarriage of justice.

2. Adversarial criminal trial, the Onions count, the presented Crown case and the petitioner's reply.

3. Unease over the trial judge and his conduct of the trial.

4. Evidence from the trial shows that a substantial miscarriage of justice occurred because of the defects and the conduct of the trial by the trial judge. That evidence was not given due weight by the Court of Criminal Appeal and brings into the question the integrity of the Court of Criminal Appeal's decision on the matter. The Court of Criminal Appeal failed to fully investigate the ground that the trial judge erred when he put to the jury two possibilities, which were inadmissible evidence.

5. The High Court of Australia ruled that there was no doubting the correctness of the decision of the Court of Criminal Appeal." 5 The letter supporting the latest petition does not raise issues with the clarity which might be expected of a lawyer. I do not say this in order to criticise the applicant but to make plain that it is necessary again to seek to distil the essence of the applicant's application. The following appears to me to be an appropriate summary. It follows the summary contained in the Crown submission in relation to this application.

That the trial judge directed the jury to act on evidence not established by the Crown.

That the trial judge allowed the prosecution to split its case.

That the trial judge, by way of his summing up, introduced evidence that was not established by the Crown at trial being the evidence of Mr Paul Onions.

That the various possibilities as regards the evidence of Paul Onions and what flowed from each possibility, as it was put to the jury, had the effect of misleading the jury.

That the mistaken evidence of Mr Paul Onions when he said that he saw a spare tyre mounted on the rear of the vehicle, as was the evidence also of Mrs Berry, represented a new allegation and that no contrary evidence to rebut the so-called mistaken evidence of Mr Paul Onions (and Mrs Berry) was adduced at the trial.

There was no evidence adduced at the trial that would entitle the trial judge to put the second possibility (regarding the evidence of Mr Onions) to the jury; and

The trial judge did not refer to the evidence of the first possibility (of the Paul Onions' evidence) about seeing the spare tyre or the chrome wheel trims in as much as the jury was not reminded of Mr Onions' reaction to such a question. 6 The Crown submitted that each of these grounds was raised by the petitioner in his earlier petition, has been the subject of previous submissions by him and was considered and dealt with by Barr J in his Honour's reasons for the decision given on 27 October 2005. It was submitted that the particulars/grounds in the latest petition concerning the evidence of Mr Paul Onions (and Mrs Berry) relating to the appearance and characteristics of the 4WD vehicle, that he entered on 25 January 1990, have been fully considered beforehand. In the application considered by Barr J the "admitted" misdescription of certain characteristics of that 4WD vehicle, as acknowledged by the Crown at the trial, were said to have given rise to an error of law made by the trial judge in as much as he did not permit any opportunity to the petitioner to address such evidence. Because the trial judge allowed/permitted the jury to act upon such evidence, being identified as the first possibility and second possibility, this gave rise, so says the petitioner, to a departure from the rules of procedure by not requiring the Crown to establish that evidence. 7 I have carefully considered the applicant's submissions. I have also reviewed the decision of Barr J and the earlier decisions of the Court of Criminal Appeal and the remarks on sentence of the trial judge. I am satisfied that each of the matters which the applicant now advances were considered by Barr J. In these circumstances I do not consider it necessary to provide lengthy reasons which would only be repetitive of determinations which have previously been made by this Court. 8 In relation to the submissions that the trial judge had directed the jury to act on evidence not established by the Crown the trial judge noted in his summing up: "It has been pointed out … that is an unfortunate situation, and I do not propose to debate with anybody where the blame may lie. There were of course a number of matters which Mr Martin could have put to you in answer to that second possibility. The first thing is that it was not put to the accused himself in the course of cross-examination, when you may have been able to judge his spontaneous reaction to such a suggestion. It was not put to him either that he would have had access to such a vehicle which was similar to his own - which did not have a wheel on the back or chrome trims on the other wheels. If this argument had been put, Mr Martin may well have asked you why would the accused have used some other vehicle when he had his own?" 9 The reference by the trial judge to these matters had the effect that his Honour put to the jury matters which counsel for the petitioner might have submitted himself. Be that as it may, the critical matter is that there was in fact no additional evidence introduced by the Crown. Rather what was dealt with at this point of the trial was another perspective or point of view about evidence which had already been admitted in the case. The reference to "an unfortunate situation" related to the fact that neither party had addressed the jury on that additional perspective (or point of view). It should not be confused with any suggestion that there was additional evidence. 10 The petitioner has alleged, both in his present application, and in the earlier application that the trial judge "split the prosecution case". This submission must be rejected. What happened at the trial was that the Crown Prosecutor made a submission about the contradiction between his witnesses' recollection about the tyre and the contradictory case (as accepted by the Crown) put forward by the accused. The only sense in which the Crown case was "split" was that the trial judge had introduced another perspective, or point of view, about the evidence (as opposed to the introduction of evidence as such) about which neither party had addressed. 11 In his application the applicant submitted that there is a relevant doubt as to part of the evidence in the case based upon the proposition that the recollection of two Crown witnesses was defective. The Crown accepted that the witnesses' recollection was wrong but this did not touch upon the evidence of Mr Onions linking the petitioner to the attack upon him. Barr J dealt with this matter when dismissing the earlier application. His Honour said: "But even an unexplained error in the description of the attacker's vehicle, and even a serious and unexplained discrepancy between the description of the attacker's vehicle and the applicant's vehicle, was not likely to determine the issue raised at trial. The evidence directly and indirectly linking the applicant to the attack on Mr Onions was remarkable in its breadth and detail. It will be recalled that Mr Onions got away from his attacker by the skin of his teeth, leaving in the attacker's vehicle his backpack containing his distinctive shirt. That shirt was found with a shirt of the applicant's at the house where the applicant was living. Both the applicant and the attacker had what Mr Onions called a "Merv Hughes" moustache. Mr Onions identified the applicant from a series of photographs. I do not find it necessary to review the whole of the evidence about the appearance and attributes of Mr Onions' attacker. They are reviewed in the summing-up and the judgment of the Court of Criminal Appeal. I note the conclusion of Gleeson CJ, with whom the other members of the Court agreed, that the Crown case on the detention of Mr Onions was strong. I note again the important concession made by defence counsel which, as Hunt CJ at CL told the jury, meant that the Crown no longer had to exclude any reasonable possibility that the offender was or the offenders were outside the Milat family. In pronouncing sentence his Honour said this - 'The case against the prisoner at the conclusion of the evidence and the addresses was, in my view, an overwhelming one. Although his legal representatives displayed a tactical ability of a high order, and conducted his defence in a skilful and responsible manner, in my view the jury's verdicts were, in the end, inevitable, I agree entirely with those verdicts. Any other, in my view, would have flown in the face of reality.' " 12 In response to the present application the Crown drew attention to the fact that the "first possibility" referred to that circumstance whereby Mr Onions was taken to be correct about everything in his description of the 4WD vehicle, except for the presence of a back tyre and chrome wheel trims, being errors on his part. The "second possibility" relates to that circumstance where the accused did pick up Mr Onions, but he (the petitioner) was not in his vehicle but one similar to it. 13 As the Crown pointed out, Barr J, when dealing with the earlier petition, made clear that the trial judge did not deal with this issue on a restricted basis, as the applicant asserts. In his reasons for decision Barr J said: "The late emergence of the applicant's evidence about when the chrome trims and the rear wheel were fitted to his vehicle left the Crown in an awkward position. I do not say so critically of the applicant and those who represented him. No doubt it suited them tactically to present the evidence in the manner in which they did, and that is something that they were entitled to do. That having been done, however, it is not open to the applicant to complain about the way the Crown responded. The thrust of the applicant's submissions is that his Honour left only two possibilities to the jury, either of which would leave the evidence of Mr Onions essentially undamaged, and that his Honour left for the jury's consideration a submission (that the applicant might have been using someone else's vehicle) favourable to the Crown case that the Crown had never made. As the extracts from the summing-up show, however, that submission is wrong. The parts of the summing-up relied on have been taken out of context. His Honour reminded the jury of the logical possibilities contended for and summarised the available arguments one way and the other." 14 His Honour's conclusion was: "Not only has the applicant misled himself by taking so limited a view of what the trial judge said to the jury; he appears to have lost sight of the substantial point at issue at trial over this evidence. The kind of vehicle driven by the attacker was a matter incidental to a more important enquiry, namely the identity of the attacker. The principal Crown contention, dependent upon Mr Onions' evidence, was that the applicant was his attacker. The evidence of the vehicle driven by the attacker was not, of course, unimportant. The Crown wished to establish the link in part by evidence which compared the vehicle driven by the attacker with the vehicle owned and generally used at the time by the applicant." 15 The Crown's ultimate submission was that each of the seven grounds advanced in the latest application have been the subject of specific grounds of appeal and adjudication in the Court of Criminal Appeal and ultimately considered by the High Court on a special leave application. In addition it was submitted that each of the grounds have been the subject of adjudication in the earlier petition. 16 In my opinion the Crown submission must be accepted. There is nothing in the material submitted by the applicant in support of his present application which provides a basis for concluding that there is a doubt or question as to his guilt or which otherwise represents a mitigating circumstance that would support the referral of this matter to the Court of Criminal Appeal. I have no unease and no sense of disquiet in allowing the convictions to stand. The material provided by the applicant does not raise a doubt or question about his guilt. 17 The application is refused. **********

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