Milat v The Queen [2004] HCA 17

HIGH COURT OF AUSTRALIA

McHUGH J

IVAN ROBERT MARKO MILAT APPLICANT

AND

THE QUEEN RESPONDENT

Milat v The Queen

[2004] HCA 17

24 February 2004

S230/2002

ORDER

Summons and application dismissed.

Representation:

No appearance by the applicant

G E Smith for the respondent (instructed by Solicitor for Public Prosecutions (New South Wales))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Milat v The Queen

Practice and procedure – Application for special leave to appeal – Oral submissions – Right to make oral submissions – International practice – Power of Court to order production of prisoner for purpose of making oral submissions in person or by video link – Status of applicant for special leave – Discretionary factors.

Words and phrases – "application for special leave to appeal".

High Court Rules, O 69A rr 3, 15.

1. McHUGH J. The applicant, an indigent prisoner, filed a summons on 17 December 2003 seeking alternative orders. The first order is that he be physically brought before the Court to conduct his special leave application that has been filed in the Court. The alternative order is that he be permitted to appear via video link using the facilities that are available at Goulburn Correctional Centre, where the applicant is presently in custody serving a life sentence. 2. The application for special leave is brought in respect of a decision of the Court of Criminal Appeal of New South Wales. That Court dismissed an appeal against convictions in July 1996 on seven counts of murder and one count of detaining for advantage. Hunt CJ at CL had sentenced the applicant to life imprisonment. 3. The applicant's application for special leave necessarily requires an extension of time within which to file that application. The order of the Court of Criminal Appeal dismissing his appeal was delivered on 26 February 1998. The application for special leave was not filed until 24 June 2002. That was about four and a quarter years later than the time required by O 69A r 3 of the High Court Rules. 4. The applicant claims that the conduct of his trial miscarried in relation to evidence of identification. He claims that the trial judge permitted the Crown to put a case to the jury that was inconsistent with the testimony of its own witnesses without either cross‑examining those witnesses as hostile or putting to them that their evidence was mistaken. The applicant also claims that the trial judge erred by putting alternative cases to the jury, one of which had not been relied on by the Crown. He argues that these errors affected the evidence on the detaining for advantage count and that the jury may have used the conviction on that count to convict him on the murder counts. Accordingly, he claims there has been a miscarriage of justice and that all of his convictions are bad and should be set aside. 5. The Crown responds that the particular evidentiary issue about which the applicant complains was not essential to the conviction of the applicant and there was no legal error on the part of the trial judge. The Crown contends that the evidence against the applicant was so strong that counsel for the applicant conceded that a member of the Milat family, or someone closely associated with it, must have committed the murders. The Crown claims that the evidence about which the applicant complains – which related to the presence of a vertically mounted spare wheel on the rear of the applicant's four‑wheel drive – was neither crucial to the Crown case nor the subject of extensive questioning by the Crown. The Crown says that the convictions for murder did not depend on the conviction for detaining for advantage. 6. It is unnecessary to make any comments about the merits of the application except to say that an application, brought so long out of time, faces a formidable hurdle in obtaining the grant of special leave to appeal. 7. Order 69A r 15(2) of the High Court Rules provides for the determination of applications for special leave to appeal without oral argument from one or both parties. It provides: