Supreme Court New South Wales Medium Neutral Citation: Application by Ivan Robert Marko Milat pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2014] NSWSC 434 Hearing dates: On the papers Decision date: 22 April 2014 Jurisdiction: Common Law Before: Adamson J Decision: Application refused. Catchwords: CRIMINAL LAW - Application for inquiry into sentence under s 78 Crimes (Appeal and Review) Act 2001 - not necessary for Crown to establish the applicant's precise role in the murders and in particular whether he committed them alone or as part of a joint criminal enterprise - no deprivation of benefit of exculpatory value of DNA evidence in relation to the hairs found in deceased's hand in context of adequate summing up by trial judge - no unease or sense of disquiet with allowing sentence or conviction to stand - no special facts or special circumstances - Application substantially similar to those made before - Application dismissed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001, s 78, s 79 Cases Cited: Application of Peter James Holland under s.78 of the Crimes (Appeal and Review Act) 2001 [2008] NSWSC 251 Milat v The Queen [2004] HCATrans 179 R v Milat [1998] NSWSC 795 R v Ivan Robert Marko Milat [2005] NSWSC 920 Milat [2006] NSWSC 1391 Milat - Application for Inquiry into Conviction and Sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2010] NSWSC 1292 Milat - Inquiry into conviction and sentence [2008] NSWSC 732 Category: Principal judgment Parties: Ivan Robert Marko Milat (Applicant) Regina (Respondent) Representation: Crown Solicitor's Office (Respondent) File Number(s): 13/265626 Publication restriction: Nil decision Introduction 1Ivan Robert Marko Milat (the applicant) applies pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (the Act) for an inquiry into his conviction on seven counts of murder and one count of detaining for advantage. The basis for the application 2The applicant summarised the basis for his application in the following way: Unease at trial judge ruling of no burden of proof onus on Crown to provide its criminal enterprise evidence: (a) because the Crown did not prove the criminal enterprise evidence that the trial judge directed the jury to act on; (b) because the trial judge erred, the obligation was on the Crown to prove the evidence that is put to the jury as proof of guilt. 3The applicant referred to passages from the summing up in the course of which his Honour said: "... The issue is whether the Crown has also established that the accused is guilty of those murders - that is, that he was criminally responsible for the acts by which the seven victims were murdered. . . . The Crown, of course, has made it abundantly clear that it does not know whether he acted alone or in company, so whenever I refer to a 'joint criminal enterprise' I mean either alone or in company. The word 'joint' is perhaps is a misleading one, so perhaps I should simply say that he participated in a criminal enterprise, either alone or with another or others. It is for the Crown to persuade you beyond reasonable doubt that the accused did participate in a criminal enterprise, either alone or in company, in relation to each of the murders. . . . The Crown's primary case is that one person, either alone or with another or others, was involved in the murder of all seven victims and that the accused was that person." 4The applicant also referred to the description of the Crown's alternative case given by the trial judge in the summing up which would arise if the jury considered that the Crown had failed to eliminate doubt in relation to the applicant's evidence of an alibi for the murders of Anja Habschied and Gabor Neugebauer. His Honour said: "The Crown's alternative case excludes the possibility that there was just one person acting alone in the murder of all seven victims. The alternative case is that there was a small group consisting of at least two persons involved in the murders of these seven victims. It is unable to establish how many persons were in this group, or that its membership was constant or how many persons were involved in relation to each murder. Each person may have been involved in all seven or just some of the murders. The Crown says that there was nevertheless at least one person who, with another or others, was involved in the murder of the remaining five victims - Deborah Everist, James Gibson, Simone Schmidl, Joanne Walters and Caroline Clarke -and that the accused was that person." 5Finally, the applicant relied on the following passage in the summing up regarding DNA analysis that indicated that hairs found in the hand of Joanne Walter did not belong to the applicant, or any other member of the Milat family: "This point was not explained, and you may wonder how it means that the accused was not involved in the murder of Joanne Walters. You may think that it means only that Joanne Walters had not been subdued by the accused, but that does not mean that he was not there subduing Caroline Clarke, or performing some other function in that criminal enterprise." 6In the context of these directions given to the jury in the summing up, the substance of the application appears to be that, in failing to prove the applicant's precise role in the murders (and, in particular, whether he committed them alone or as part of a joint criminal enterprise), the Crown had failed to discharge its burden of proof. The applicant's reliance on the DNA evidence appears to suggest that he was somehow deprived of the benefit of its exculpatory value. Applicable law 7 Part 7 of the Act relevantly provides: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) ... 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) ... (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) ..." 7The principles applicable to the consideration of applications under s 79 were reviewed by Johnson J in Application of Peter James Holland under s.78 of the Crimes (Appeal and Review Act) 2001 [2008] NSWSC 251 (Holland): "[6]The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. [7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore [2000] NSWSC 364; (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19]. [8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]. [9]The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Mi/at [2005] NSWSC 920; (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result." Factual background 8The applicant was tried in the Supreme Court before Hunt CJ at CL and a jury from 25 March to 27 July 1996. On 27 July 1996 the applicant was sentenced for each of the seven offences of murder to penal servitude for life. For the offence of detaining for advantage he was sentenced to penal servitude for six years. 9The Court of Criminal Appeal dismissed his appeal against conviction on 26 February 1998: R v Milat [1998] NSWSC 795. Gleeson CJ (Meagher JA and Newman J agreeing) summarised the facts as follows: "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. ... 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. ... 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'. 10The applicant's grounds of appeal in the Court of Criminal Appeal were, in substance, as follows: (1)The identification evidence (relevant to the charge of detaining for advantage) given by Mr Onions was received into evidence in error and ought to have been excluded as unreliable and unfair, and a related argument, not appearing in the grounds, 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. (2)That the trial judge erred in a ruling as to the comment that was open in the event that the applicant decided to make an unsworn statement from the dock. (3)That the trial judge, in his directions to the jury, failed to put the defence case fairly and made various observations which undermined or underestimated the strength of the submissions made on behalf of the applicant at trial. (4)Photographic and other evidence which was inflammatory and prejudicial, and which served no forensic purpose ought not to have been admitted. (5)A complaint of irregularities giving rise to a reasonable suspicion as to the fairness of the trial. (6)That by reason of prejudicial publicity before and during the trial, the convictions were unsafe and unsatisfactory and amounted a miscarriage of justice. 11Gleeson CJ (with whom the other members of the Court of Criminal Appeal agreed) dismissed each ground of appeal and concluded by observing that he was satisfied that the applicant had a fair trial, according to law, and that the matters complained of produced no miscarriage of justice. 12An application for special leave to appeal to the High Court was refused in May 2004: Milat v The Queen [2004] HCATrans 179. In dismissing the application Gummow J said: "There is no reason to doubt the correctness of the decision of the New South Wales Court of Criminal Appeal. None of the matters now raised by the applicant demonstrates that it is arguable that there has been any miscarriage of justice in this matter...". Previous applications for review of conviction 13The applicant has made four applications to the Court for a review of his conviction, each of which has been declined. The first application 14The first application, which was made under the predecessor provision in Part 13A of the Crimes Act 1900 (NSW), was dismissed by Barr J on 27 October 2005: R v Ivan Robert Marko Milat [2005] NSWSC 920. 15The application principally concerned a segment of the identification evidence adduced at trial regarding the applicant's motor vehicle. The Court of Criminal Appeal had specifically considered this matter in connection with the first ground of appeal. 16In dismissing the application for review, Barr J said: "26. The procedure under s474D 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 the proceedings giving rise to the conviction, whether on appeal or otherwise, the Court may refuse to consider or otherwise deal with the application: s474E(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 convictions to stand. No doubt or question about the guilt of the applicant arises on the material he relies on." Second application 17The second application for review of conviction was refused by McClellan CJ at CL on 14 December 2006: Milat [2006] NSWSC 1391. Each of the grounds of the second application involved evidence concerning Mr Onions and the applicant's motor vehicle. His Honour accepted the Crown's submission that each of the grounds raised in the application had been considered by the Court of Criminal Appeal and the High Court. His Honour found that there was no basis for concluding that a doubt or question arose as to the applicant's guilt and confirmed that he had "no unease and no sense of disquiet in allowing the convictions to stand". Third application 18The applicant's third application (which was considered under the present provisions of Part 7 of the Act) was dealt with and refused again by McClellan CJ at CL on 17 July 2008: Milat - Inquiry into conviction and sentence [2008] NSWSC 732. His Honour said: "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." 19The applicant sought special leave to appeal to the High Court from his Honour's determination. Heydon and Bell JJ found that the application for special leave was misconceived in that the refusal of McClellan CJ at CL of the application under s 79 of the Act was not a judgment from which an appeal could be brought to the High Court. Fourth application 20The fourth application was dated 15 May 2010. The applicant submitted that the Court should have "unease over the reliability of the Crown's primary evidence". Under this heading, the applicant referred to passages in the trial judge's summing up to the effect that the Crown had not sought to prove that only one person, acting alone, committed all seven murders, but that the Crown case was that the accused may alternatively have been involved in a joint criminal enterprise by which he was responsible for the murders. 21The applicant submitted: "despite the verbal directions given by the Crown and trial judge of the facts of the Crown case no evidence was adduced linking the Petitioner in a [joint] criminal enterprise and or participation with another person or persons and no attempt made by the Crown to establish that one person [the applicant] alone committed any one, some or all of the murders". 22The fourth application also relied upon what was said to be "new evidence". The complaint appeared to be that, at trial, the jury were neither required nor directed to make any finding whether the Crown had established any of its "primary facts" as described, specifically that "another person or other persons were involved in the murders". The issue was then "developed", to found a submission that McClellan CJ at CL, in his determination given in 2008, had made an assessment to the effect that no evidence was available that could point to the existence of other person or persons involved in the murders. 23The third ground for this application was that the DNA did not implicate the applicant and that he had also adduced cogent evidence of alibi. 24The applicant complained there was no direction to the jury that the DNA evidence did not implicate him. He argued that because the vaginal swabs taken from Ms Clarke and Ms Walters had multiple contaminations, the only finding available to the jury was that the DNA evidence did not implicate Mr Milat. 25The fourth application was refused by McClellan CJ at CL on 11 November 2010: Milat - Application for Inquiry into Conviction and Sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2010] NSWSC 1292. In doing so his Honour said: "6 The present application is the fourth occasion on which Mr Milat has sought to have his conviction reviewed. I have considered that application and am satisfied that the matters raised by Mr Milat have been fully dealt with either in the proceedings giving rise to his conviction, the appeal or in the previous applications for review. I am not satisfied that there are special facts or circumstances that justify the taking of further action. For those reasons I refuse to consider or deal with Mr Milat's application." The present application 26In my view, the present application involves a misapprehension of the Crown 27case at trial which was that the applicant was criminally responsible for all seven murders even though the Crown did not contend that it could establish whether the applicant acted alone in carrying out the murders or whether more than one person was involved. 28This matter was specifically addressed by Gleeson CJ in the judgment of the Court of Criminal Appeal in the following terms: "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." 29For reasons referred to above, the applicant's contention that the Crown did not discharge its burden of proof appears to rest entirely upon the erroneous proposition that the Crown had an obligation to prove the precise nature of his involvement in the murders and, in particular, whether he acted alone or as part of a joint criminal enterprise. 30I do not regard the applicant's contention as capable of creating any sense of unease in allowing the convictions to stand. It does not provide any basis for raising a "doubt or question" as to his guilt. 31There is, in my view, no substance to the applicant's contention that he was deprived of the benefit of the exculpatory value of DNA evidence in relation to the hairs found in Joanne Walters' hand. In the summing up the trial judge reminded the jury that an expert forensic biologist had excluded the hairs as belonging to any member of the Milat family, and the jury was properly directed as to the significance that it could attach to this evidence. 32I do not consider this issue to be capable of raising any sense of unease in allowing the convictions to stand. 33In any case, the present application raises no new fact or circumstance to justify action under Part 7. The applicant has sought to use s 78 of the Act as another avenue of appeal (see Holland (supra) and the authorities there cited by Johnson J, including the determination of Barr J in relation to the applicant's first application). 34The present application substantially replicates the substance of the third and fourth applications, which McClellan CJ at CL considered and rejected. 35Section 79(3) of the Act relevantly provides that the Court may refuse to consider or otherwise deal with an application for review of a conviction if "it appears the matter has been previously dealt with under [Part 7]..." and "the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action". 36The matter has been previously dealt with by the Court of Criminal Appeal, the High Court and in previous applications made under Part 7 of the Act. I am not satisfied that there are special facts or special circumstances that justify the taking of further action. Accordingly I refuse to consider or otherwise deal with this application for review pursuant to s. 79(3) of the Act. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 May 2014