Supreme Court of NSW|1998-02-26|Before: Gleeson CJ, Meagher JA, Newman J, Hunt CJ

Regina v Milat Matter No Cca 60438/96 [1998] NSWSC 795 (26 February 1998)

The Supreme Court of New South Wales Court of Criminal Appeal

CRIMINAL LAW - MURDER - EVIDENCE - Photographic identification - witness provides a number of different forms of identification of accused including selecting accused's photograph from a number of photographs of suspects - argued evidence of photographic identification should have been excluded - HELD - judge not in error in admitting evidence of photographic identification.

TRIAL BY JURY - FAIR TRIAL - MEDIA PUBLICITY - argued media coverage investigation and trial resulted in unfair trial - HELD - trial not unfair.

The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 applied.

GLEESON CJ: Following a trial before Hunt CJ at CL and a jury, which commenced on 25 March 1996 and concluded on 27 July 1996, the appellant was convicted of seven offences of murder and one offence of detaining for advantage. In respect of each of the offences of murder he was sentenced to penal servitude for life. In respect of the offence of detaining for advantage he was sentenced to penal servitude for six years. The appellant appeals against his convictions.

The murders of which the appellant was found guilty received international notoriety as the "backpacker murders". The victim of the offence of detaining for advantage was a backpacker who had an alarming encounter with a person said to be the appellant, but who managed to escape.

Between December 1989 and April 1992, seven backpackers disappeared shortly after leaving Sydney, travelling south. They were Deborah Everist and James Gibson from Victoria, Simone Schmidl from Germany, Anja Habschied and Gabor Neugebauer also from Germany, and Joanne Walters and Caroline Clarke from the United Kingdom. Their bodies were discovered in the Belanglo State Forest over a period between September 1992 and November 1993. The victims were all young, being aged between nineteen and twenty-two years. They were all travelling in circumstances where they were unlikely to have been missed for some time after they were killed. Each set out along the Hume Highway from near Liverpool in order to hitchhike south. All of the bodies were covered with branches and leaf litter and were in an advanced state of decomposition when found. Forensic evidence showed that each victim had been attacked savagely, with a great deal more force than was necessary to cause death, and apparently for some form of psychological gratification. Two of the victims had been shot a number of times in the head. One had been decapitated. Three others had stab wounds which would have caused paralysis, two of them having had their spinal cords completely severed. Two had been strangled. All but one appeared to have been the subject of sexual interference, either before or after death.

The backpacker who escaped was named Paul Onions. He was from the United Kingdom. He reported the incident to the police immediately after he escaped. He gave the police a description of his attacker. That was before any of the bodies had been discovered in the Belanglo State Forest. The incident was treated by police at the time as an offence involving an assault with a firearm. Later, after the bodies had been discovered and there had been international publicity about the backpacker murders, Mr Onions made contact with the police who were investigating the murders, and told them his story. He returned from England to Australia in 1994, and again in 1996 for the trial of the appellant, and was an important Crown witness.

When, following investigations, the police arrested the appellant in 1994, they found a great deal of property linking him directly to the backpacker murders. It will be necessary to set out the details below. For the present, it suffices to say that, in the appellant's house, and in his mother's house (where the appellant had been living at the time of the murders), and also amongst some possessions of the appellant stored in the house of one of his brothers, the police found many articles of clothing, and items of equipment, which were shown to have belonged to the deceased backpackers. The police also found in the possession of the appellant an array of weaponry proved to have been connected with the murders. They found in his possession a bloodstained cord. DNA testing linked the blood to one of the victims. Ultimately, the evidence which connected these articles to the victims of the backpacker murders was so comprehensive, and so overwhelming in its force, that trial counsel for the appellant, in his concluding address, made an important tactical concession. He acknowledged that the Crown had proved that the murders had been committed by a person or persons belonging to, or very closely associated with, the Milat family. However, it was contended that it was not the appellant who had committed the murders but it was probably one or more of his brothers, such as Richard Milat or Walter Milat, acting alone or in company with others.

The evidence of Paul Onions was powerful. Its detail will be set out below. The most important aspects of it were the physical description he gave of his attacker when he first reported the matter to the police, and an account he gave of information the attacker had given to him about his (the attacker's) personal background. As will appear, there were some aspects of the identification evidence of Mr Onions that were relied on by the defence, but the jury were entitled to regard the total effect of his evidence as strongly incriminating. Moreover, the man who attacked and, for a time, detained, Mr Onions, near the Belanglo State Forest, and who matched the appellant's description, had been left in possession of Mr Onions' rucksack after he fled. When the police arrested the appellant they found, amongst his clothing, at his mother's house, a distinctive shirt (referred to as the "Next" brand shirt) which belonged to Mr Onions and which had been amongst the items of clothing in his rucksack. This shirt was found next to a shirt belonging to the appellant.

In his remarks on sentence the Chief Judge at Common Law said:

"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".

Before going to the grounds of appeal it is convenient to state, in a summary form, the Crown case, and the nature of the evidence upon which it was based. In this respect, it is to be noted that it was made clear, from the outset, that it was never the Crown's contention that it could establish that the appellant acted alone in carrying out these murders. Bearing in mind that some of the victims were travelling in pairs, and having regard to the way in which they appeared to have been bound or otherwise restrained, it was possible that more than one person had been involved in the murders. Furthermore, because there was an alibi raised in relation to the deaths of two of the victims, there was an alternative Crown case, the detail of which does not presently require consideration, based upon the possibility that such an alibi might have been found to be plausible. This is not a subject which is taken up by any of the grounds of appeal.

As was noted, the essence of the ultimate defence was that, although the Crown had well and truly linked the Milat family, or close associates of the Milat family, to the murders, the Crown had not excluded the possibility that it was someone other than the appellant (perhaps, for example, a brother of the appellant) who was responsible. The concession that the Crown had shown the offender to have been a member, or very close associate, of the Milat family, came in final address, after all the evidence was complete, and after the Crown had addressed. Some of the issues that had been agitated during the course of the evidence might well have been regarded by the jury as losing some, or all, of their importance once that concession was made.

In outlining the Crown case, it is convenient to begin with the charge relating to the detention of Mr Onions. That seems to be the way everybody approached the matter at the trial. There were eight counts in the indictment, arranged in chronological sequence. The charge concerning Mr Onions was the subject of count 3. The relevant events occurred on 25 January 1990.

Paul Onions, who was then aged twenty-four, was an English tourist on a working holiday in Australia. On 25 January 1990, he left Glebe, a suburb of Sydney, and travelled by train to Liverpool Railway Station. His intention was to hitchhike to Mildura to seek employment picking fruit. At around midday, Mr Onions arrived at the Liverpool Railway Station, and walked to the Hume Highway, where he spent about an hour walking in a southerly direction and trying to obtain a lift. At about 1.00pm he arrived at Lombardo's Shopping Centre at Casula. He went into a shop to buy a drink. When he came out of the shop he was approached by a man who offered him a lift. According to the Crown case, that man was the appellant.

In January 1990 the appellant, whose occupation was that of a road worker, was living with his mother. (In late 1993 or early 1994 he moved to a house at Cinnabar Street, Eagle Vale).

The man who spoke to Mr Onions took him to a 4 WD vehicle in a car park and said that it belonged to him. He invited Mr Onions to get in with him. Mr Onions' rucksack was placed on the back seat. Together the pair drove off in a southerly direction.

The man told Mr Onions that his name was Bill. He said he worked on the roads, that he was on holidays, and that he was on his way to visit friends in Canberra. He asked Mr Onions some questions which elicited the information that Mr Onions had no family or friends in Australia, and was travelling around the country. The man told Mr Onions that he lived in the Liverpool area, that he was an Australian but that his family came from Yugoslavia, and that he was divorced. Some of that information was true of the appellant. It is also information which the police recorded later that day after the events about to be described.

When Mr Onions gave the police, later that day, a physical description of the man who had given him a lift, he described the man as having a moustache like the cricketer, Merv Hughes. The following is a photograph of the appellant tendered in evidence.

PHOTO REMOVED AS IT DOES NOT FIT ON DISC. IT WAS A PHOTO OF MR MILAT WEARING A MOUSTACHE LIKE MERV HUGHES.

When, after the appellant's arrest in 1994, he was interviewed by the police, he denied that he had a moustache in January 1990. However, a photograph taken from a passport application made not long before showed the appellant with the same moustache as that depicted in the above photograph. It is not surprising that a young Englishman, seeking to describe the moustache to police, would do so by reference to a similar moustache worn by a well known Australian cricketer.

As the two men travelled south along the Hume Highway events took a nasty turn. The driver began to express vehement and controversial opinions, and Mr Onions became nervous. When they reached a point which was about 900 metres north of the turn off to the Belanglo State Forest, the driver stopped the vehicle. He gave an explanation which Mr Onions regarded as spurious. He then produced a revolver, which he pointed at Mr Onions, saying that he intended to rob him. Mr Onions noticed some rope protruding from a bag under the driver's seat. Mr Onions then took a wise course. He leapt out of the car and ran. The man chased him, and fired a shot. The man managed to catch Mr Onions for a time, but he broke free and ran onto the roadway. He stood in front of an ongoing vehicle forcing it to stop. He jumped into the vehicle. The alarmed driver of the vehicle made a `U' turn and headed back north along the Hume Highway. She drove Mr Onions to the Bowral Police Station, where he reported the incident. Mr Onions' rucksack containing his belongings, including the "Next" shirt, was left behind.

The account of the incident, as given on 25 January 1990 by Mr Onions to Constable Nicholson, who was called as a witness, and whose occurrence pad was available, was in the following terms. The offender was said to be a man called "Bill", who was six feet tall, of slight build, with a dark complexion, black hair, a moustache like Merv Hughes, and black sunglasses. His family came from Yugoslavia. He was divorced. He was said to be in his mid thirties. The vehicle was described as a white or silver 4 WD, possibly Nissan or Toyota. The offender was said to be carrying a four inch barrel revolver which was loaded. He was said to work for the RTA (Roads and Traffic Authority) at Liverpool.

The appellant is not six feet tall. His height is about five feet eight inches. However, Mr Onions is only about five feet six inches tall, and in the circumstances it is hardly surprising that the aggressor might appear larger than in truth he was.

The evidence showed that in 1990 the appellant was often known, or referred to, as Bill. He owned and regularly drove a Nissan Patrol 4 WD vehicle. He had been employed as a road worker. His father came from Yugoslavia. He was divorced. He had a moustache like Merv Hughes the cricketer. He was not proved to have been on holidays at the time, or to have friends in Canberra. He denied holding certain racist views of the kind Mr Onions attributed to the man in question. Not all aspects of the physical description fitted the appellant. Nevertheless, taking everything into account, the jury were entitled to regard the contemporaneous description which Mr Onions gave of his attacker as strong evidence against the appellant. When to that is added the fact that a shirt which undoubtedly belonged to Mr Onions, and which had been left behind in his rucksack when he fled, was found at the appellant's mother's house with an old shirt belonging to the appellant, it is not difficult to understand how the jury could reasonably have come to the conclusion that the man who gave Mr Onions a lift was the appellant.

In 1994, Mr Onions identified a photograph of the appellant amongst a series of photographs shown to him by video. At the trial, the judge gave the jury the usual warnings about identification evidence, and the problems connected with photographs.

When Mr Onions came to give evidence at the committal in 1994 and the trial in 1996 he gave a description of the vehicle in which he had been given a lift which contained more detail than the description he had given at the Bowral Police Station in 1990, and which, in one respect, did not match the appellant's vehicle. Mr Onions said, in his evidence, that the vehicle had a wheel attached vertically at the rear. Many Nissan 4 WD vehicles have such a spare wheel, but it was shown that the appellant's did not have one in January 1990, although one was fitted later. A similar statement about the vehicle was also made by the rather terrified woman into whose car Mr Onions had jumped. The jury were entitled to take the view that this evidence, of Mr Onions and the woman, was mistaken. Indeed, what may have been at work is an example of the well known displacement effect about which trial judges commonly warn juries in relation to photographic identification. This matter did not emerge as an issue until the defence case. In his evidence in chief, Mr Onions gave a description of the vehicle which included a slightly ambiguous reference to a spare wheel at the rear. He was shown by the Crown Prosecutor, without objection, and in a leading fashion, photographs of a silver Nissan 4 WD with a vertically mounted spare wheel at the rear, and he said the vehicle looked like the one in the photographs. No particular issue was made about the subject while he was in the witness box. When the appellant came to give evidence he proved that in January 1990 his silver Nissan 4 WD did not have a vertically mounted spare wheel at the rear, although it had a spare tyre underneath the rear. A vertically mounted spare wheel was attached to the rear later, but it was not there on 25 January 1990. This raised a factual problem for the jury to consider. What was indisputable, however, was that in January 1990 Mr Onions described to the police a man with a moustache like Merv Hughes, who attributed to himself personal characteristics which matched those of the appellant. Four years later, Mr Onions' shirt was found next to the appellant's shirt. (Having regard to the nature of the case which was ultimately advanced on behalf of the defence, it may be noted that there was no positive evidence that any other member of the Milat family had a moustache which resembled that worn by Merv Hughes, although at p1526 and p1531 of the transcript there is evidence of Richard Milat which could have been regarded as raising such a possibility).

As to the revolver which had been produced by the man described by Mr Onions, the Crown case was that the appellant owned a .38 calibre revolver and a .45 calibre revolver. There was evidence that he was known to carry firearms under the driver's seat. The appellant admitted ownership of a .44 calibre black powder revolver and a .45 calibre automatic pistol. He denied owning either a .38 or .45 revolver. Mr Onions gave an account of seeing some rope in a bag under the driver's seat of the vehicle. When the appellant was arrested a pillowcase containing five lengths of sash cord, one of which was bloodstained, was found in the garage of his home. A length of sash cord was also found on the shelf in the garage.

There was evidence that the appellant frequented Lombardo's Shopping Centre.

I turn now to counts 1 and 2. These concern the deaths of Deborah Everist and James Gibson, both aged nineteen, who left Surry Hills in Sydney to hitchhike to Albury on the morning of Saturday 30 December 1989. They were never seen alive again. However, on 31 December 1989 and 13 March 1990 respectively, a camera, and a backpack, were found at Galston Gorge. Mr Gibson's name and address appeared on the base of the backpack. A similar but less weathered backpack was seen in the area in early January 1990. Both the items were identified as belonging to Mr Gibson. It was admitted by the appellant that they were in Mr Gibson's possession at or immediately before his death. In December 1989 the appellant had been working on the construction of a roundabout at Dural, not far from Galston Gorge.

On 5 October 1993 the skeletal remains of Ms Everist and Mr Gibson were located 25 metres apart in an area of the Belanglo State Forest. The body of Ms Everist was located at the base of a tree and that of Mr Gibson lay beside a fallen log. Both bodies were covered with leaf and stick debris. Post mortem examinations found that they both died from multiple stab wounds.

Count 4 concerned Simone Schmidl, aged twenty-one. Early in the morning of Sunday 20 January 1991 she left Guildford with the intention of catching a bus to Liverpool and then hitchhiking along the Hume Highway to Melbourne. She carried a multi-coloured backpack and a blue day bag. On 1 November 1993 her body was found in the Belanglo State Forest. Around her skull was an elasticised band and around her mouth was what appeared to be a gag. A post mortem examination showed that she died from multiple stab wounds.

It was proved that the appellant could have been in the area at the time of her death. On 16 January 1991 a camera device detected his vehicle driving through a red light.

Counts 5 and 6 relate to Anja Habschied and Gabor Neugebauer, aged twenty and twenty-one respectively. They left a backpackers hostel at Kings Cross on the morning of 26 December 1991 intending to travel via Adelaide to Darwin. On 4 November 1993 their remains were found about 55 metres apart in the Belanglo State Forest. Ms Habschied's body was headless. Mr Neugebauer's mouth had been gagged with cloth, and five spent bullets were found in his skull.

Approximately 165 metres from Mr Neugebauer's body, in an area described as "Area A" at the trial, the following items were found:

(2) 1 empty Winchester Winner .22 calibre ammunition box bearing the batch number ACD1CF2.

(4) 1 empty Eley .22 calibre ammunition box with the batch number J23CGA or J26CGA.

Some 61 metres from Mr Neugebauer's body, and between his body and Area A, property proved to belong to Mr Neugebauer and Ms Habschied was found. There was also found a device suitable for use for restraining a person.

There was evidence that about one week after the disappearance of Ms Habschied and Mr Neugebauer the appellant asked his neighbour to repair a hole in the door of his Nissan vehicle, stating that it had been caused by a bullet.

It was in relation to the murders of Ms Habschied and Mr Neugebauer that the appellant attempted to set up an alibi. Detailed reference is made to it in the summing-up of Hunt CJ at CL, and, in the light of the grounds of appeal that have been argued, it is unnecessary for present purposes to go further into the matter.

Counts 7 and 8 related to the deaths of Joanne Walters and Caroline Clarke, respectively aged twenty-two and twenty-one, who left Kings Cross Railway Station on Saturday 18 April 1992 intending to travel by train to the Hume Highway and then to hitchhike to Adelaide.

On 19 September 1992 Ms Walters' body was found on a rock ledge in the Belanglo State Forest. Pieces of what appeared to be a gag were found around her throat, neck and chin. On 20 September 1992 Ms Clarke's body was found 30 metres from Ms Walters' body. Ten spent bullets were found in and around her head and ten Winchester "Winner" brand cartridge cases were located near her body. Forensic evidence showed that Ms Walters died from stab wounds to the neck and chest and Ms Clarke died from gun shot wounds to the head.

There was a good deal of evidence, and argument, at the trial about what have been referred to as "false sightings" of some of the victims, but that matter is not relevant to any of the grounds of appeal. Once again, the subject can be found discussed at some length in the trial judge's summing-up.

At the time of his arrest in 1994 the appellant was living at 22 Cinnabar Street, Eagle Vale. He had previously been living at his mother's home. He also had some belongings which were being stored for him at the house of his brother, Walter Milat. There was a great deal of evidence concerning items of personal property found by the police, some of it at the appellant's house at Cinnabar Street, some of it amongst belongings of the appellant at his mother's house, and some of it at Walter Milat's house. The detail of some of that evidence will be discussed below.

The Crown built up a powerful circumstantial case against the appellant. The circumstances relied upon, and which the jury were entitled to regard as proved, were the following:

(1) The accused was in possession of a substantial amount of the deceased backpackers' property at his house at Cinnabar Street, with his own property in the alcove under Walter Milat's house, and at his mother's house in Guildford where he was living at the time of the murders.

(2) The accused owned the Ruger 10/22 which was used to shoot Caroline Clarke and Gabor Neugebauer.

(3) The accused was in Area A at the same time, or at much the same time, as Gabor Neugebauer was shot there with that Ruger 10.22, because his Anschutz rifle was used there.

(4) The Winchester Winner ammunition located with the accused's property in the alcove under Walter Milat's house had the same batch number as that apparently used in Area A where Gabor Neugebauer was shot, having been manufactured during the day shift at the Winchester factory at Geelong.

(5) The Winchester Winner ammunition with an "H" head stamp located in the accused's bedroom and in the spare room at Cinnabar Street, and the Winchester Subsonic ammunition with a "W" head stamp located with the accused's property in the alcove under Walter's house, were consistent with cartridge cases located in Area A where Gabor Neugebauer was shot.

(6) The batch number on Eley ammunition located with the accused's property in the spare room at Cinnabar Street corresponded with that on an Eley box located at Area A where Gabor Neugebauer was shot.

(7) The bullets recovered from and under the head of Caroline Clarke had a gouge mark, most likely from a silencer fixed to a rifle. The accused had a handmade silencer in his garage at Cinnabar Street, and had stated an intention to purchase a factory made one.

(8) The accused left his Nissan with his neighbour, Mr El-Hallak, to repair the damage caused by a bullet having discharged inside it, just over a week after Anja Habschied and Gabor Neugebauer disappeared.

(9) The accused was in possession of a piece of rope which was used in the murder of Caroline Clarke.

(10) The ingredients of the leash device at the Neugebauer scene were all available to the accused in his home at Cinnabar Street.

(11) Industrial recycled rags were used at the killings of Walters, Habschied, Neugebauer and Schmidl and in the storage of some ballistics.

(12) The accused carried a Bowie knife in his car which could have been used to stab the victims.

(14) The accused's attack upon Paul Onions was a thwarted attempt to take him into the Belanglo State Forest where he was to be killed.

The property referred to in (1) above included the following. Simone Schmidl's blue sleeping bag cover was found in the appellant's garage at Cinnabar Street. It containing a number of her personal belongings. Her sleeping bag was in a bedroom in the house. Her water bottle and pouch were in another room. Her name, "Simi", was on the bottle. Her backpack was in the possession of the appellant's sister-in-law, who said the appellant had given it to her. Caroline Clarke's camera was found in the kitchen at Cinnabar Street. There was found a photograph of the appellant's girlfriend, Chalinder Hughes, shown wearing a Benetton top identical to one Caroline Clarke had in her backpack. A sleeping bag said to belong to Deborah Everist was found in a bedroom at Cinnabar Street. Reference has already been made to Paul Onions' shirt.

It was, presumably, this kind of evidence that led trial counsel for the appellant to say in his final address:

"There can be absolutely no doubt that whoever committed all eight offences must be within the Milat family or very, very closely associated with it."

Even that concession, however, does less than justice to the significance of the precise location of many of the items of property found.

As to (2) above, the evidence showed, and it was not ultimately disputed, that Gabor Neugebauer and Caroline Clarke was shot by a Ruger 10/22 firearm to which a certain Ruger bolt assembly had been fitted. The Crown relied upon the following sub-set of circumstances, which the jury were entitled to regard as established by the evidence, to prove that the appellant owned the Ruger 10/22:

(1) The Ruger parts were well hidden in the wall cavity at Cinnabar Street at a time when the accused knew of the significance of the bolt assembly to the backpacker murders.

(2) A Ruger receiver was found apparently hidden in the accused's boot when the police called upon him to surrender.

(3) The Ruger parts were painted in camouflage colours when no Milat, other than the accused, was in the habit of painting his weapons in that way.

(4) The "Select Fire 10/22" book in his possession explained how a Ruger 10/22 could be converted into a fully automatic weapon.

(5) The fifty shot magazine in his possession was more appropriate to a fully automatic weapon than the standard ten shot magazine provided.

(6) The single fired Winchester cartridge case amongst the accused's ammunition in a bag in the spare room at Cinnabar Street was at least consistent with having been fired by a Ruger 10/22 to which this bolt assembly had been fitted, and (according to Detective Superintendent Prior) actually fired by it.

(7) The Winchester Winner ammunition box in his possession had the same batch number as that apparently used in Area A where Gabor Neugebauer was shot.

(8) Other Winchester ammunition in his possession had the same head stamps ("H" and "W") as that located in Area A where Gabor Neugebauer was shot.

(9) Either the silencer in his possession or one which he was purchasing could have been used when Caroline Clarke was shot.

(10) He was a customer of the Horsley Park Gun Shop at the time when the Ruger 10/22 was sold.

(11) He adopted a procedure when Walter purchased the so-called "new" Ruger 10/22 on behalf of the accused in 1992 which prevented its purchase being traced to him.

(12) He was in possession of a Ruger 10/22 before that time which Walter had unsuccessfully attempted to purchase.

(13) This particular Ruger 10/22 to which the bolt assembly located in the wall cavity had been fitted had been used at Buxton and at the Wombeyan Caves Road property where the accused had been shooting.

(14) The bolt assembly was wrapped in two pieces of cloth which were similar in nature to the rag which the accused had wrapped around the bolt of a rifle located in his locker at Guildford.

There is no ground of appeal which argues that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant.

The appellant was sentenced on 27 July 1996. He filed a notice of appeal against his conviction on 5 August 1996.

On 21 February 1997 the appellant filed an amended notice of appeal, together with a document, six pages in length, entitled grounds of appeal. Those grounds were prepared by counsel who had appeared for the appellant at his trial. They were expressed more fully than ordinary grounds of appeal, and included supporting argument.

The court was informed that an application for legal aid for the appeal was made and that on 9 April 1997 legal aid was refused. There was never any appeal against, or application for judicial or administrative review of, that decision.

On 4 August 1997 the solicitors for the appellant wrote to the Registrar of the court stating that they would be representing the appellant pro bono.

On 11 August 1997 the hearing of the appeal was fixed for 4 November 1997 and directions were given relating to the filing of written submissions.

On 15 August 1997 the appellant wrote to the Registrar stating that he would not be legally represented at the hearing of the appeal. Subsequently, written submissions were received from him, which included numerous references to decided cases.

The appeal came on for hearing on 4 November 1997. The appellant informed the court that he was representing himself. He applied for an adjournment in order to amplify his written submissions. He said he had received some legal advice (he did not say from whom) that he should do this. He wanted an adjournment until some unspecified time in 1998. The court declined that particular application, but heard what the appellant wished to say orally in support of his appeal and then granted him a further period of approximately four weeks to put in writing any additional submissions he wished to make. The appellant addressed the court on certain factual issues, and indicated other issues he would prefer to reserve for further written submissions.

On or about 10 November 1997 the Registrar was informed that the further written submissions would be prepared by the solicitor who had represented the appellant at his trial. In due course, further written submissions, of considerable length and detail, were filed. The Crown filed submissions in reply.

The court then listed the matter again on 9 December 1997. The appellant was present, as was the solicitor who had prepared the further written submissions. The court asked the solicitor a number of questions seeking clarification of certain aspects of the written submissions. The court also asked both the solicitor and the appellant himself whether they wanted any further adjournment in order to prepare and present further submissions and they both answered that question in the negative.

The written submissions filed following the hearing of 4 November, and discussed on 9 December, commenced with what was put forward (for the first time) as an argument based upon the decision of the High Court in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. It was referred to as "the Dietrich argument", and will be considered below. The remaining submissions contained arguments supporting the grounds of appeal which had been filed earlier.

The written submissions filed following the 4 November hearing contained an assertion that the funds to pay for the legal work involved in their preparation were provided, on 10 November 1997, by an unnamed benefactor, whose assistance was limited to the preparation of written submissions, and did not extend to paying for a lawyer to argue the appeal orally.

The submissions argued that "the further hearing and determination of the appeal should be adjourned until the appellant has been provided with adequate legal representation". It was not suggested that there should be a permanent stay of the appeal. That would be an unusual application for an appellant to make. Nevertheless, it was argued that the court should leave the appeal on foot, but should not determine the appeal unless and until legal aid funds were provided to brief counsel at a full oral hearing of the appeal.

As was acknowledged by the appellant's solicitor on 9 December 1997, this court, the Court of Criminal Appeal, which is a court of statutory jurisdiction, and has no power to hear appeals or applications for review of decisions of the Legal Aid Commission, does not have before it a comprehensive account of what has gone on between the appellant, his solicitor, and the legal aid authorities in relation to the matter of legal aid for the appeal. We are in no position to form a view, assuming it to be relevant to any decision we have to make, as to the reasonableness of the decision to refuse legal aid. In particular, we do not know, and should not know, what opinions may have been received concerning the merits of the appeal.

We know, because we have been told by the appellant's solicitor, that a benefactor has made some funds available to pay for legal advice and assistance, but we are unaware of the details of that.

We also know, because the Registrar was so informed, that at one stage there was a proposal that the trial solicitor would conduct the appeal pro bono, but, for reasons of which we are unaware, there was a change of intention in that respect.

As the history set out above demonstrates, it is not the case that the appellant has been obliged to present his appeal without legal representation or assistance. Even if that had been the case, however, Dietrich is not authority for any proposition which requires the court to take the course now proposed by the appellant.

The High Court, in Dietrich, rejected the argument that a person accused of a serious crime has a right to be provided with counsel at public expense. If that argument is incorrect in relation to a person facing a trial, it is at least equally incorrect in relation to a convicted person who has appealed against the conviction.

Unlike the original prosecution and trial, the appeal process has been initiated by the appellant. It may be accepted that the court should act, within the limits of its power, to ensure that the appeal is dealt with fairly to the appellant. It should be observed, however, that it is not unusual for this court to decide appeals of convicted persons who are unrepresented because legal aid has not been made available. The same applies to the High Court, which frequently determines applications for special leave to appeal by litigants in person.

The extensive written submissions filed at various times on behalf of the appellant, and the oral argument put to the court, cover all the grounds of appeal originally prepared by trial counsel. The suggestion that full justice can only be done to the grounds of appeal if there is further oral argument is unconvincing.

The appellant has been convicted by a jury of very serious offences. The jury's verdicts are not contingent until confirmed by an appellate court. (cf Chamberlain v The Queen [No 1] [1983] HCA 13; (1983) 153 CLR 514 at 519-520). The appellant is seeking a new trial. Delay in any further trial could produce unpredictable consequences. There has already been substantial delay. Fairness to the appellant does not require that the court should adjourn the appeal indefinitely, or until the appellant, by some unspecified means, forces or persuades the legal aid authorities to reverse the decision that was made back in April 1997.

A suggestion was made in certain submissions that the appellant wishes to have an opportunity, at this stage, to carry out certain factual investigations about the circumstances surrounding the discharge of a juror. That is a matter considered below. No explanation is advanced which would justify further delay to permit such belated inquiries.

This appeal has been pending since July 1996. In the light of the events that have occurred, and in the circumstances of the case, justice does not require that the court should grant the adjournment now sought by the appellant. On the contrary, it is fair and proper that the court should now deal with the matter.

The first ground of appeal is that the evidence of identification given by Paul Onions was received in error. This evidence, it is argued, should have been excluded on the grounds that it was unreliable and, in the circumstances of the case, unfair.

What Mr Onions was shown in 1994 was a video showing thirteen still photographs of males. One of the photographs was a photograph of the appellant taken from a passport application he had made during 1989. The evidence showed that Mr Onions appeared to take considerable care in examining the video and finally selected photograph No. 4, which was the photograph of the appellant. Mr Onions stated that in particular he recalled the moustache, the same narrow squinting eyes, the same hair, and the same facial features.

The appellant was somewhat older than the estimates made by Mr Onions. In January 1990 he was aged forty-six. Other photographs of the appellant in evidence showed him with black hair, having grey flecks in his sidelevers.

The aspects of alleged unreliability relied upon in the grounds of appeal are as follows.

First, it is observed that there was a delay of over four years between January 1990 and the photographic identification. That is true, and it may be added that, according to the woman into whose car Mr Onions jumped when he escaped from the appellant, Mr Onions was terrified.

Next, it is said that there were some discrepancies arising out of the original description given by Mr Onions of the appearance of the appellant. It is true that Mr Onions said that the man was somewhat taller than the appellant in fact was and also that he was somewhat younger. Even so, the jury were entitled to consider that the overall description given by Mr Onions fitted the appellant.

It is argued that the circumstances of the procedure adopted were such as to place great pressure on Mr Onions to make an identification. That assertion is not borne out by the evidence.

Next, it is argued that there was a lack of suitable alternatives on the videotaped photo board from which Mr Onions made his identification. There are, in truth, not a lot of men who wear a moustache of the kind that was worn by the appellant. There were three such men included in the photo board.

It is argued that the act of identification was equivocal. That is not correct. According to the evidence, the act of identification was as follows:

"That's him ...... No. 4. He is identical to the face I see that approached me at the newsagency. He has got the same moustache and face, that's him."

The submissions filed on behalf of the appellant criticise the police strongly for not having videotaped the identification procedure. This failure, it is said, was "unforgivable", and went to considerations both of reliability and fairness. There was a good deal of evidence as to what occurred during the process by which Mr Onions selected to photograph of the appellant. Indeed, substantial argument in the appellant's submissions has been developed on the basis of that evidence. The failure to record the process of identification on videotape did not require or justify the exclusion of the evidence of photographic identification.

Finally, it is put that the act of identification was made by someone who was mistaken about something as unmistakable as the vertically mounted rear wheel on the vehicle. This proposition was elaborated by a submission that it is not part of the defence case that Mr Onions was mistaken about that aspect of the vehicle, but it follows that if he was correct about the vehicle then it is unlikely that he is correct about the identity of the driver.

If, as the jury were entitled to conclude, Mr Onions was mistaken about the rear mounting on the vehicle, it is not difficult to understand how such a mistake could have been made. As was noted earlier, the first time Mr Onions came out with the proposition about the rear wheel seems to have been in 1994, more than four years after the event. It is not clear what photographs he had been shown before then, but it is clear that, in the course of giving his evidence at the trial in 1996, he was shown by the Crown Prosecutor, in a leading fashion, photographs of a silver Nissan Patrol which had a vertically mounted rear spare wheel. That he may have made a mistake is not inconsistent with his evidence being otherwise reliable.

The suggested unfairness of the identification evidence is said to arise out of three circumstances. First, it is complained that the photo board did not contain photographs of any other suspect in the investigation and in particular did not contain a photograph of Richard Milat. Second, it is said that the problem was compounded by a direction which the trial judge gave to the jury in the following terms:

"On behalf of the Crown, it was accepted that Richard's photograph was not included in the video shown to Mr Onions back in 1994, although for whatever reason we do not know. But it was said that, if the accused wanted to suggest that Mr Onions had been led into error because of a family resemblance, it was open to (defence counsel) to have had Richard - or anyone else from the Milat family for that matter - brought into court so that Mr Onions could see whether it was or was not a reasonable possibility he could have made an error through such a family resemblance."

Third, it was said that the Crown submission recorded in the above direction in effect reversed the onus of proof.

The complaints of unfairness are not made out. There is, it may be observed, a measure of inconsistency in one aspect of the submissions concerning Richard Milat. The police were criticised for not including a photograph of Richard Milat amongst those shown to Mr Onions. At the same time it is said that Mr Onions, by reason of what he had told the police back in 1990, was bound to select a photograph of a man with a Merv Hughes moustache. There is no evidence (from the appellant or anybody else) to establish that Richard Milat wore that kind of moustache, and there is nothing to suggest that the police ever had available to them a photograph of Richard Milat wearing such a moustache. There is nothing to suggest that such a photograph ever existed. It was not unreasonable of the Crown, in the course of argument, to point out that, if it had been suggested that Richard Milat's appearance was such that he might have been mistaken for the appellant, the defence should have given Mr Onions an opportunity to deal with that suggestion. The jury saw Richard Milat, who was called at a Crown witness, and were in a position to compare his appearance with that of the appellant, and evaluate competing submissions relating to that subject.

Hunt CJ at CL gave the jury careful and comprehensive directions about the dangers of photographic identification. The ground of appeal does not complain about those directions but contends that the evidence should not have been admitted at all.

In reasons for judgment dated 5 September 1996 Hunt CJ at CL set out his reasons for various decisions he had made during the course of the trial. Between pages 2 and 5 of that judgment his Honour deals with this matter. There is no error shown in his Honour's reasoning, in the course of which he said:

"Although there were indeed frailties in Mr Onions' identification evidence - principally the fact that there were only three photographs in which the man pictured could be said to have had a Merv Hughes moustache, and of those three in only one (that of the accused) did the man otherwise fairly fit the description that Mr Onions had given - it seems to me that this could adequately be dealt by directions leaving it to the jury to determine whether the identification made by Mr Onions in the context of all of the evidence relevant to the third count was reliable.

It was upon that basis that I declined to exclude the May 1994 identification evidence. I should add, as a postscript, that the case was ultimately also left to the jury upon an alternative basis that, in the event that they were not satisfied beyond reasonable doubt that Mr Onions' identification in May 1994 was reliable, but in the light of the concession that there could be no doubt that it was a member of the Milat family who was responsible for the detention of Mr Onions, they could still be satisfied that it was the accused who detained him based upon the description which Mr Onions gave of his attacker to the police in January 1990, provided that the Crown had eliminated any reasonable possibility that it could have been any of the other members of the family. In my view, that description, in the light of the concession which was made in the final address for the accused, was in any event powerful evidence supporting the reliability of the identification made by Mr Onions in May 1994, although I did not put it to the jury in that way."

In my view no error has been shown in his Honour's decision not to exclude the evidence.

It is convenient at this stage to deal with a related argument not appearing in the grounds of appeal, but presented in submissions to the court. The appellant complains that it was unfair and inappropriate for the trial judge to leave for the consideration of the jury the possibility that Mr Onions had been mistaken about the vertically mounted rear wheel on the Nissan vehicle. The appellant rightly observed that nobody put to Mr Onions, when he was giving his evidence, the possibility that he had been mistaken about that matter.

In considering this argument, it is important to bear in mind the way the issue unfolded at the trial. Reference to this has been made above. At the time of the conclusion of the Crown case, it was not apparent that there was any issue as to whether the appellant's 4 WD vehicle in fact had a vertically mounted rear spare wheel in January 1990. It was only in the defence case that it emerged that the vehicle had no such wheel in January, although one was put there later.

In all the circumstances it was reasonable, and not unfair, to permit the Crown to argue, as one possible alternative (the other alternatives that were put are not presently relevant) that Mr Onions had made a mistake about this mater. It did not form part of his description of the vehicle when he spoke to the police on 25 January 1990, and it appears first to have emerged in 1994. So far as his courtroom evidence was concerned, it also appears to have emerged in the context where he was shown photographs that could have suggested to him something which caused his mistake.

It may be added that it was open to the jury to take the view that the most compelling features of the evidence of Mr Onions, and the evidence about what he told the police, were his description of the man on 25 January 1990, his account of personal details given to him by the man, and his identification of the "Next" shirt, which four years later was found with the appellant's belongings.

The second ground of appeal is that the trial judge erred in a ruling he gave as to the comment that was open to him in the event that the appellant should decide to make an unsworn statement from the dock.

There is a considerable element of artificiality about this ground, which was not developed in submissions.

For reasons that do not require elaboration, the trial was conducted under transitional legislative provisions which meant that the accused was still entitled to make an unsworn statement from the dock, but s407, prohibiting certain comments, was deleted by the Evidence (Consequential and Other Provisions) Act 1995 , and the Evidence Act 1995 made certain provisions relating to comment upon the failure of an accused to give evidence.

At the conclusion of the Crown case it was agreed that the trial judge would hear argument about, and give a preliminary ruling upon, the legal consequences of all this in the event that the appellant should decide to make an unsworn statement. A judgment on the matter was given on 22 April 1996. His Honour's conclusions are expressed on pages 9 and 10 of that judgment. He noted that the conclusion that he reached was in line with the opinion of the Australian Law Reform Commission which had made a recommendation (that was not accepted) that every accused person should have the right to make an unsworn statement.

It is of particular importance to note that, in the course of his reasons for judgment, Hunt CJ at CL drew a distinction between the question of the nature of a comment which was legally permissible, and the related but different question of the substance of the comment that would be appropriate to the circumstances of a particular case. On the latter subject his Honour declined to be drawn. No doubt he had in mind that it could depend upon what happened during the remainder of the trial.

"I am satisfied that, if the accused (Mr Milat) exercised his right to make an unsworn statement rather than give evidence in the present case, the nature of the comment which I am entitled to make is as I have outlined. The Crown Prosecutor took the position, wisely, that abundant caution should be exercised in this matter. I agree.

In those circumstances, now that I have come to a conclusion as to nature of the comment which I am entitled to make, I will hear further argument as to the nature of the comment which caution demands should be made in this particular case. That will need to await the conclusion of the evidence."

In the events that occurred, the appellant gave sworn evidence, and the matter the subject of his Honour's reasons for judgment did not arise.

There is no way of knowing what effect the learned judge's ruling, to the extent to which he gave a ruling, had upon the appellant's decision to give sworn evidence. It may be remarked, however, that in the light of the strength of the Crown case against him, if he had either remained silent or made an unsworn statement, his position would have been hopeless.

It is not clear what exactly is claimed to be wrong about the preliminary ruling given by Hunt CJ at CL, and I can see no error in it. In any event, however, it has not been demonstrated that if there were an error in the ruling it was material or resulted in any miscarriage of justice.

The third ground of appeal complains that Hunt CJ at CL, in his directions to the jury as to the substance of the defence case, failed to put the case fairly, and made various observations which undermined or underestimated the strength of submissions being made on behalf of the appellant.

In considering this ground, and the particulars given of it, it is necessary to bear in mind the sequence of events at the trial. In that connection it should be mentioned that, as is customary in this State, the Crown Prosecutor's closing address to the jury came before defence counsel's address.

Before the appellant was called to give evidence, defence counsel made an opening address. At no stage in that opening address did counsel make the concession, which was ultimately made in the closing address, to the effect that the Crown had established beyond reasonable doubt that all eight offences must have been committed by a member, or a person very closely associated with, the Milat family.

In his opening address counsel said that the accused would tell the jury that he had no connection with any of the offences, and no knowledge of any of the matters the subject of the charges. He had no knowledge of the items found by the police at Cinnabar Street, which was also occupied by his sister (who was not called to give evidence). The appellant would tell the jury that he did not bring into the house any of the items belonging to the deceased backpackers. He had no knowledge of where they came from. In the case of some items he did not know of their existence until after his arrest.

By the time counsel gave his closing address, the appellant had been subjected to a damaging cross-examination, and the Crown Prosecutor had made his closing address.

At a very early stage of his final address counsel for the appellant made the observation quoted above, to the effect that there could be no doubt that whoever committed all eight offences must be within the Milat family or very closely associated to it. A little later he said:

"Whichever way you look at it it is absolutely irrefutable that whoever has committed these eight offences must be either within the Milat family or so very closely associated with it it does not much matter. The question is who is it within the Milat family. Who has committed these eight offences? The question is, do you have a reasonable doubt that it was Ivan Milat as opposed to someone else in the family. Well, that is the starting point. It has to be."

One of the particulars given of this ground of appeal complains that, in his summing-up to the jury, Hunt CJ at CL described this as "an important concession". There is no substance in this complaint. It was an important concession. The point may be illustrated by asking the following rhetorical question. If, in early 1990, someone had approached the Milat family with the description Mr Onions had given the police, and asked which member of the Milat family was being described, what would the answer have been? On the whole of the evidence, the answer would have been the appellant. The lawyers for the defence, at the trial and on this appeal, endeavoured in part of their submissions to suggest that another member of the Milat family, such as Richard Milat, had deliberately set out to impersonate Ivan Milat. That suggestion itself, by implication, acknowledges both the significance of the concession and, importantly, the match between the appellant and the description which Mr Onions gave to the police.

Another particular complains that, in referring to this concession Hunt CJ at CL reminded the jury of when it was made. However, his Honour did so in a context which was perfectly fair to the appellant. He said:

"I should also emphasise that I do not by these remarks intend to criticise the accused or those who represent him for the fact that this concession was made only after the Crown Prosecutor had addressed."

The Crown Prosecutor had not had an opportunity to deal with the concession or its significance. It was made after he had completed his final address. It was proper for the trial judge to remind the jury of the concession, and to explore and comment upon its significance. The way in which the matter was dealt with in the summing-up did not go beyond this. It is argued that, from an early stage of the proceedings, the defence had made it clear that they would seek to implicate one or other of the appellant's brothers in these crimes, and to suggest, for example, that they had planted incriminating evidence at the appellant's house. That, however, does not detract from the argumentative significance of what was described, accurately, as the concession. The judge was not under some misapprehension as to the defence case. He was making legitimate comments on the arguments as they developed at the trial.

The remaining particulars of this ground raise a question that is strictly now academic, having regard to the verdict of the jury on the third count. There was some discussion at the trial, related to the nature of the defence case, as to the significance for the remaining counts if the jury should acquit the appellant on the third count. What was said about that matter seems to have involved a complaint made, not by defence counsel, but by the Crown Prosecutor, and there was no relevant application for redirection by defence counsel.

The question arose out of the directions the trial judge gave as to the relationship between the third count and the other counts. His Honour directed the jury that they must consider the guilt or innocence of the appellant in relation to the third count only by reference to the evidence which was relevant to the third count, and not by reference of the totality of the evidence in the case.

It was never the Crown case that there was only one person involved in all eight offences. The Crown made it clear from the outset that, on the Crown case, there was a possibility that some other person or persons in addition to the appellant may have been involved. Nor was it the Crown case that, in order to obtain a conviction on the other seven counts, the Crown had to prove that the appellant was guilty of count 3.

On the defence case, if the jury concluded that it was a reasonable possibility that all eight offences were committed by only one person, and if they concluded that it was a reasonable possibility that it was a member of the Milat family other than the appellant who committed the offences against Mr Onions, then the appellant was entitled to be acquitted of all charges. That proposition, in substance, was put as a defence argument to the jury in the summing-up. Later, after discussion in the absence of the jury, the learned judge gave further directions in which he said:

"Something else which I apparently misunderstood was the Crown's attitude to this proposition put by (defence counsel) about there being a reasonable possibility that only one person was involved in all eight offences.

The argument was that, if you accept that the pattern is the same in relation to all eight offences, as the Crown has argued that it is, and because he says there is a reasonable possibility that only the one person committed all eight offences, then, if you find the accused not guilty of the Onions' charge, it must have been someone else who committed the murders and thus the accused is entitled to be found not guilty of all eight offences. I said, after dealing with a number of issues, that the Crown disputes that there is any reasonable possibility that only the one person was involved in all eight offences. I referred to what I had said earlier this morning to the Crown's argument that, as a matter of commonsense and experience, it is obvious that more than one person would have been involved in these killings.

The Crown has drawn my attention to a difference between himself and myself as to what he was submitting, and of course you must take into account what he says he was submitting, not how I interpreted it. He said that his submission had been that you will conclude that there was more than one person involved in all eight offences, but that he had not intended to say that there was no reasonable possibility that only the one person was involved in all eight offences. He said, however, that you then move on to consider the explanation put forward by (defence counsel) upon this basis, that it involved a fallacy that you could go from an acquittal of the accused in relation to the Onions' charge into a finding of not guilty in relation to the murder charges, for this reason.

You have been told throughout that you must approach the Onions' charge - the third charge - upon the evidence which is relevant only to that charge, and you will recall that that is how we started when I gave you directions in relation to the Paul Onions' charge, and how I started off in relation to the murder charges. Indeed I recall saying, either yesterday or the day before, that there is a danger that you may reconsider your verdict in relation to the Paul Onions' charge when you come to consider the whole of the evidence in the case. They are, as you can imagine, and as you will have seen, two quite different bodies of evidence.

So the fallacy the Crown puts to you is that, if you find the accused not guilty upon the limited evidence you are entitled to consider, it is not the same as saying that he did not do it when you look at all of the evidence. Now that is not an invitation to you to reconsider your verdict in relation to the third count. Your verdict in relation to the third count must be based solely upon that evidence which we discussed last week. But the fallacy is that a finding by you on a limited body of evidence should apply at all to any findings which you might make of the larger body of evidence. When you think about it, that must be so. The Crown has corrected me in my interpretation of the submission which he made about that particular matter, and that is the way in which you should approach it."

As was said, this entire subject seems now to be academic.

The defence case was put fairly to the jury. The issue, arising out of one aspect of the defence case debated between the Crown Prosecutor and the judge was ultimately resolved. In any event, once the jury found the appellant guilty on the third count in accordance with the directions as to how they were to approach that question (as to which no complaint is made in this appeal) the issue did not arise.

The fourth ground of appeal complains of the admission of photographic and other evidence which was said to be inflammatory and prejudicial, and which was said to serve no forensic purpose.

The photographs in question appear to have been photographs of the remains of the victims, and some photographs of them whilst alive.

It was part of the Crown case, as opened, and as conducted, that there was a pattern to the backpacker killings. The Crown Prosecutor, in opening, said that the Crown would prove that all seven backpackers were killed in ferocious sustained attacks, in which greatly more force was used than was necessary to kill.

"The Crown sought to establish not just that the backpackers were dead. As an important element of its case that the attack upon Onions was part of the same pattern evidenced by the killings of the seven backpackers, the Crown sought to establish that they had been attacked savagely and cruelly, with force which was unusual and vastly more than was necessary to cause death, and for some form of psychological gratification.

The oral evidence of Dr Bradhurst was to be that each of two of the victims was shot a number of times in the head. The third was decapitated, in circumstances which established that she would have been alive at the time. The stab wounds to each of the three others would have caused paralysis, two of them having had their spinal cords completely severed. The multiple stab wounds to three of the seven victims would have been likely to have penetrated their hearts. There were signs that two of them had been strangled. All but one of them appears to have been sexually interfered with either before or after death.

Even such a description does not adequately demonstrate the fact which the Crown sought to establish. Nor did the drawings prepared by Dr Bradhurst on which the positions of the wounds were indicated. Nor did the formal admission foreshadowed (and later made) that the only reasonable inference to be drawn was that the force used on each of the victims was unusual and unnecessary and vastly more than was necessary to kill.

I formed the view that the fact which the Crown sought to establish could only be demonstrated adequately by the tender of those photographs which were necessary in order to see the number and nature of the wounds which had been inflicted. The horrific nature of the photographs which was said to amount to unfair prejudice was actually part and parcel of the very fact which the Crown sought to prove. The evidence was powerful, but the Crown needed powerful evidence to make the point."

It appears that, at the trial, complaint was made about photographs of the live backpackers because they showed the victims as smiling, friendly young people. However, the point of the photographs was to show clothes that they were wearing, cameras that they were holding or backpacks that they were using.

It was a proper exercise of discretionary judgment to decide to admit the material in question, including photographic and pathological material. It is incorrect to say that it served no forensic purpose.

The fifth ground of appeal complained of what were said to be irregularities giving rise to a reasonable suspicion as to the fairness of the trial.

One of the alleged irregularities was the screening by the television media, during jury deliberations, of what was said to be emotive material.

Towards the end of the summing-up counsel for the appellant is recorded as saying to the trial judge:

"Your Honour, I am very concerned about the behaviour of the media in the last twenty-four hours and the effect it may be having on this trial. I refer in particular to the publication of flowers being presented to the families of the deceased persons and I also refer to the promotional advertisements that have been aired on television in recent days relating to this matter.

Could I also refer to the coverage whilst the jury is retired in the sense that journalists show all photographs and TV footage of the families of the victims waiting for the jury to return. All these matters in my submission are putting tremendous pressure on the jury and indeed are raising very emotional issues for the jury if they are seeing these things.

The defence finds itself in an invidious position as a result of this. I am not making any application at this stage in respect of the jury, your Honour, but I do not wish that position to be taken as conceding that these breaches could not be seen by themselves as materially affecting the integrity of the trial."

Hunt CJ at CL responded by addressing remarks to the media, with appropriate warnings. He went on to say:

"These breaches could not be seen by themselves as materially affecting the integrity of the trial, but they are nevertheless indicative that, unless checked, the media is minded to do something which really will affect that integrity."

Before and during the trial, the trial judge took great pains to deal, in every legitimate way, with the inevitable problems that arose out of the great interest which the proceedings attracted. I am satisfied that, notwithstanding all of the matters of which he complains, the appellant had a fair trial.

One particular matter of potential prejudice of which complaint is made concerns an incident relating to a juror who was discharged virtually at the end of the trial.

On Friday 19 July 1996, Hunt CJ at CL was about to commence the second day of his summing-up to the jury. It was the sixty-fourth day of the trial. The transcript records a discussion in Chambers between the judge, the Crown Prosecutor, and counsel for the appellant, following a report to the judge by a Sheriff's Officer of some information he had been given by a juror.

The juror was examined in court, but in the absence of the rest of the jury on the voir dire. He said that he had received, overnight, a telephone call from a man which was of a threatening nature. The juror said he had no concern about continuing in the case, and was happy to put the matter out of his mind. He also said he had spoken to no other juror. Counsel for the appellant asked for a discharge of the entire jury. The trial judge declined but, after further discussion with counsel, decided to discharge that particular juror. The juror was instructed not to tell any of the other jurors what had happened. Subsequently the remaining jurors were brought into court and the judge said to them:

"First, members of the jury, unfortunately one of your colleagues is unable to continue as a juror, and we are now obliged to proceed without him. That was a decision which was made with considerable regret. Secondly, I am sorry that Friday was lost. The delay was unavoidable, as it was essential that I clear up a very important matter then and there, and before we proceed any further with the trial. It took much longer to clear up than I had anticipated."

The question which arises is whether the incident gives rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the jury had not discharged its task impartially. (Webb v The Queen [1994] HCA 30; (1993-1994) 181 CLR 41 at 53). I would answer that question in the negative.

There is no reason to believe that the juror in question was not effectively quarantined. There is no reason not to accept his evidence that he had told none of the other jurors about the threatening telephone call, and there is no reason to doubt that he complied with the instruction not to tell the other jurors the reason why he was discharged.

The sixth ground of appeal was added by the appellant. The ground is that, by reason of prejudicial publicity before and during the trial, the convictions were unsafe and unsatisfactory and amounted to a miscarriage of justice.

The legal principles relevant to a consideration of this ground were considered by the High Court in The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592, a case which in one respect was similar to the present. In this case, as in Glennon, certain pre-trial publicity had been held to amount to contempt of court and had been punished.

The pre-trial publicity complained of included publication in the media, in 1994, of certain statements made in court by the Crown Prosecutor in the course of opposing an application for bail. This was one of the principal grounds upon which, in 1996, there was an application to Hunt CJ at CL for a stay of proceedings.

A useful point of reference for an examination of some of the background material is to be found in the judgment of Hunt CJ at CL dated 5 September 1996 under the heading "Stay of Proceedings".

Before the trial commenced, the appellant made various unsuccessful attempts to have the trial conducted without a jury. The legal position was that the appellant was entitled to elect to have a trial without a jury, but in order for the election to be effective it required the consent of the Director of Public Prosecutions. That consent was refused. An unsuccessful attempt was made to challenge the refusal on administrative law grounds. Subsequently an application was made to Hunt CJ at CL to grant a stay of proceedings until the Director of Public Prosecutions consented to the trial proceeding without a jury. Hunt CJ at CL declined to stay the proceedings. His reasons are set out between pages 9 and 20 of the judgment of 5 September. Those reasons included references to a number of factual matters, and to some of the legal principles now relied upon by the appellant.

As was mentioned earlier, the disappearance of the backpackers, the discovery of their remains in the Belanglo State Forest, and the police investigation that followed, received worldwide publicity. It was a subject of great public interest, and, naturally, attracted a great deal of media attention. The arrest of the appellant was, understandably, widely publicised.

In 1994, in the course of bail proceedings (about two years before the ultimate trial) counsel who was then representing the Director of Public Prosecutions, in opposing bail, told the magistrate that in 1971, whilst awaiting trial on a charge of rape (a charge of which the appellant was ultimately acquitted) the appellant absconded to New Zealand in breach of bail conditions. He was not arrested until three years later. This received wide press coverage which included statements from both the prosecution and defence confirming that the appellant had never been convicted of any crime of a violent or sexual nature. Hunt CJ at CL extracted some of the media reports in his judgment.

There was extensive media coverage of the case both before and during the trial. The particulars filed by the appellant's lawyers referred to "highly emotive stories concerning the relatives of deceased backpackers" and "the screening during the course of deliberations of promotional material for television programmes concerning the trial, the effect of which may have been to place the jury under pressure to return a verdict".

At the beginning of the trial, during the course of the trial, and in his summing-up, Hunt CJ at CL repeatedly directed the jury about the need to decide the case dispassionately, and solely on the basis of evidence put before them.

"You must put out of your minds everything which you may have read or which may have been said to you by people outside this courtroom. The trial has, as you have seen, attracted an enormous amount of publicity.

You must decide this case solely by reference to the evidence which has been put before you and upon the arguments of counsel which have been based upon that evidence stated openly before you here in this courtroom. You should take into account only these arguments, together with my directions and your own views of the evidence.

The opinions of other people are completely irrelevant to anything which you have to determine in this case. Your reactions and your verdicts in this case must be determined solely upon the evidence and that alone."

Much of the publicity before and during the trial concerned the presence in Australia of relatives and friends of the victims and their personal anguish. In his summing-up Hunt CJ at CL said:

"At the commencement of his final address (defence counsel) spoke of the pressures under which you have been put. Nobody can doubt that you have been under some pressure, simply from the fact that this has been a very publicly conducted trial. He went on to say that he was putting you under pressure, that the Crown had done so and that the community was putting you under pressure. I would not myself subscribe to that view. The only pressures you have are those which you feel in your mind from the simple fact that this case has been very publicly conducted. There may have been some valid reason why Mr Martin was putting that to you, but if it is your perception that the parties are putting you under pressure and the community is putting you under pressure, I urge you to put that particular consideration right out of your minds. The only expectation on you is that you will do your duty properly. The only pressure of which you should take notice is that of your own conscience."

In our criminal justice system jurors are put in a position of high responsibility. We ought to give them due credit for being able to discharge that responsibility. There is no reason to doubt that, in the present case, the jury observed the clear and emphatic warnings they were given by the trial judge, and decided the case conscientiously, by reference only to the evidence and arguments they heard in court, uninfluenced by extraneous considerations.

Some of the arguments advanced by the appellant are tantamount to saying that, in the events that happened, it was impossible for him to receive a fair trial in front of a jury, and that if he could not have a trial without a jury he should never have been put on trial at all. I would reject this. The criminal justice system, of which trial by jury is an integral part, often has to function in circumstances of intense publicity potentially prejudicial to an accused person. Various mechanisms, including, where necessary, proceedings for contempt of court, are available to protect the integrity of the system. Ultimately, however, it is the capacity of jurors, properly instructed by trial judges, to decide cases by reference to legally admissible evidence and legally relevant arguments, and not otherwise, that is the foundation of the system.

Regina v Milat Matter No Cca 60438/96 [1998] NSWSC 795

At a glance

Court

Decision date

Before

Source

Judgment (214 paragraphs)

Regina v Milat Matter No Cca 60438/96 [1998] NSWSC 795 (26 February 1998)

Parties

Legislation Cited (2)

Cases Cited (3)