MILAT [2006] NSWSC 1391

New South Wales Supreme Court

CITATION : MILAT [2006] NSWSC 1391

HEARING DATE(S) : On written submissions

JUDGMENT DATE : 14 December 2006

JUDGMENT OF : McClellan CJatCL

DECISION : Application under s 474D Crimes Act 1900 is refused

CATCHWORDS : CRIMINAL LAW - APPLICATION FOR AN ORDER UNDER S 474D - referral to the Court of Criminal Appeal - second application made - whether possibility of miscarriage of justice - whether grounds already determined at trial, on appeal or in reasons for refusing previous application - whether grounds raise a question of doubt as to guilt

LEGISLATION CITED : Crimes Act Criminal Appeal Act

PARTIES : Ivan Robert Marko Milat (Appl)

FILE NUMBER(S) : SC 72007/06

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

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCLELLAN CJ at CL

THURSDAY 14 DECEMBER 2006

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: