Milat - Inquiry into conviction and sentence [2008] NSWSC 732

New South Wales Supreme Court

CITATION : Milat - Inquiry into conviction and sentence [2008] NSWSC 732

HEARING DATE(S) : On written submissions

JUDGMENT DATE : 17 July 2008

JURISDICTION : Criminal

JUDGMENT OF : McClellan CJatCL

DECISION : Application refused

CATCHWORDS : CRIMINAL LAW - APPLICATION UNDER S 78 - third application made - whether trial judge's ruling erroneous - whether applicant denied procedural fairness - whether grounds raise a question of doubt as to guilt - strong Crown case

LEGISLATION CITED : Crimes Act 1900 Crimes (Appeal and Review) Act 2001

CATEGORY : Principal judgment

PARTIES : Ivan Robert Marko Milat (Applicant)

FILE NUMBER(S) : SC 71007/07

SOLICITORS :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

McCLELLAN CJ at CL

THURSDAY, 17 JULY 2008

71007/07 MILAT, Ivan Robert Marko APPLICATION FOR INQUIRY INTO CONVICTION AND SENTENCE

DECISION 1 HIS HONOUR: Ivan Robert Marko Milat has applied to the court for an order that there be an inquiry into his conviction pursuant to s 474D of the Crimes Act 1900. Mr Milat has previously made two applications under s 474D both of which have been declined by the court. In the first of those applications Barr J considered the detailed submissions lodged by Mr Milat and concluded that for the most part the matters raised in the application had been dealt with at trial and on appeal. In relation to other matters his Honour concluded that he had: "No unease and no sense of disquiet in allowing the convictions to stand. No doubt or question about the guilt of the applicant arises on the material he relies on." 2 I considered the second application and concluded: "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." 3 Mr Milat has lodged detailed written submissions in support of the present application. Although the application has been framed under s 474D that provision has been repealed. The relevant provisions are now found in the Crimes (Appeal and Review) Act 2001. I shall treat the application as one made pursuant to s 78 of that Act. 4 In his submissions Mr Milat refers to a television program in which Mr Clive Small, a police officer apparently in charge of the investigations of Mr Milat's crimes, made comments about the matter. Mr Small allegedly said that there was no police evidence to suggest that Mr Milat acted with another person in committing the murders. The Crown prosecutor gave an interview on the same program. He apparently said that it was no part of the Crown case to prove that any person other than Mr Milat was involved in the murders. 5 Mr Milat now complains that the trial judge's ruling that the Crown did not have to prove whether Mr Milat acted alone or in company was in some respects erroneous. His argument appears to be that because the Crown could not prove whether or not another person or persons was involved its case was flawed and he should not have been convicted. 6 In my opinion this submission is without merit. As I understand the Crown case it only sought to prove that Mr Milat committed the crimes. It was no part of the Crown case that others may have been involved. That case was made good and when I previously reviewed the matter I was satisfied, as was Justice Barr that it was a strong Crown case. It must be remembered that the matter was the subject of appeals including an application to the High Court. 7 Mr Milat also complains that in some manner he was denied procedural fairness during the course of his trial. The matters of which he speaks were the subject of evidence at his trial when an opportunity to place submissions before the jury with respect to them was available. I can see no basis for complaint about those matters. Notwithstanding the previous appeal and applications it has not previously been suggested that the trial was not fair for the reasons now raised. 8 The material provided by the applicant does not raise a doubt or question about his guilt. 9 The application is refused. **********