Ivan Milat: Application under Part 7 Crimes (Appeal and Review) Act 2001

[2017] NSWSC 1378

Supreme Court

New South Wales

Medium Neutral Citation:	Ivan Milat: Application under Part 7 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 1378
Hearing dates:	On the Papers
Decision date:	10 October 2017
Before:	Latham J
Decision:	Application is dismissed
Catchwords:	CRIMINAL LAW - application for inquiry into convictions - seventh application made - Applicant convicted of seven counts of murder and detaining for advantage - appeal dismissed by Court of Criminal Appeal and special leave to appeal refused by High Court of Australia - matters raised by Applicant previously dealt with on earlier applications - no special facts or circumstances demonstrated - application refused under s 79(3) Crimes (Appeal and Review) Act
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW)
Cases Cited:	Application by Ivan Robert Marko Milat pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2014] NSWSC 434 Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Milat - Application for Inquiry into Conviction and Sentence pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2010] NSWSC 1292) Milat - Inquiry into conviction and sentence [2008] NSWSC 732) Milat [2006] NSWSC 1391 Milat v The Queen [2004] HCATrans 179 Milat, Ivan Robert Marko - Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209 R v Ivan Robert Marko Milat [2005] NSWSC 920 R v Milat [1998] NSWSC 795
Category:	Principal judgment
Parties:	Ivan Milat (Applicant) NSW Attorney General (Respondent)
Representation:	Applicant unrepresented Crown Solicitor (Respondent)
File Number(s):	2017/158775

Judgment

1. This is the seventh application by Ivan Milat for an inquiry into his conviction on seven counts of murder and one count of detaining for advantage. For the reasons which follow, this application does not overcome the hurdle erected by s 79(3) of the Crimes (Appeal and Review) Act2001 (the Act) and ought not be further considered.

The Applicant’s Previous Applications

2. The first application under s 474D of the Act (Part 13A of that Act) was dismissed by Barr J on 27 October 2005; (R v Ivan Robert Marko Milat [2005] NSWSC 920). The applicant’s second application was also made under s 474D of the Act and was refused by McClellan CJ at CL on 14 December 2006 (Milat [2006] NSWSC 1391).

3. The applicant’s third application under s 78 of the Act was refused by McClellan CJ at CL on 17 July 2008 (Milat - Inquiry into conviction and sentence [2008] NSWSC 732). In the course of dealing with that application, his Honour summarised the applicant’s submissions. The substance of the submissions was that the trial judge erred in ruling that the Crown did not have to prove whether the applicant acted alone or in company. McClellan CJ at CL found these submissions to be without merit.

4. The applicant applied for special leave to the High Court from the decision of McClellan CJ at CL. On 30 March 2010 Heydon and Bell JJ refused leave on the basis that the application was misconceived, there being no judgment which could ground the High Court’s jurisdiction.

5. The applicant’s fourth application under s 78 of the Act 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 & Review) Act 2001 [2010] NSWSC 1292). Once again the applicant contended that the Crown could not establish at trial whether the applicant acted alone or in company with other persons and had therefore not established any of its primary facts. The applicant also claimed that DNA evidence originating from hairs found in the hand of one of the victims did not implicate him and that cogent evidence of an alibi had been adduced. In refusing that application, McClellan CJ at CL determined that the matters raised by the applicant had been fully dealt with in the proceedings giving rise to his conviction, the appeal therefrom, and in previous applications for review. Accordingly, the Chief Judge refused to consider or further deal with that application.

6. The applicant’s fifth application made under s 78 of the Act was refused by Adamson J on 22 April 2014 (Application by Ivan Robert Marko Milat pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2014] NSWSC 434). Once again, the applicant claimed that in failing to prove whether he committed the offences alone or as part of a joint criminal enterprise the Crown had failed to discharge its burden of proof. Again the applicant relied on DNA evidence from hairs found in the hand of one of the victims as a basis for his claim that he was deprived of the benefit of its exculpatory value. Her Honour refused the application, noting that the Crown bore no obligation to prove the precise nature of his involvement in the murders and observing that the relevant DNA evidence was dealt with in the course of the summing up by the trial judge. Her Honour also noted that the present application raised no new fact or circumstance and that the applicant had effectively sought to use the s 78 procedure as another avenue of appeal. Her Honour also noted that the application substantially replicated the substance of the third and fourth applications which had been rejected.

7. The applicant’s sixth application under s 78 of the Act was refused by Johnson J on 13 March 2015 (Milat, Ivan Robert Marko - Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209). Once again the applicant contended that there had been a miscarriage of justice because the trial judge had given directions to the jury that the Crown was not required to establish whether the applicant committed the offences alone or in company. His Honour refused the application, noting that there were minor differences in the way in which the applicant’s submissions were cast on this occasion, but that the present application repeated the claims made in his third, fourth and fifth applications. His Honour rejected the application pursuant to s 79(3) on the basis that it repeated unmeritorious submissions.

The Applicant’s Current Application

8. The current application rests upon the following two grounds, namely “unease over the integrity of the trial process that led to the verdict of the jury” and “unease about the integrity of the judgment of the Court of Criminal Appeal.”

9. These two grounds are fleshed out by way of submissions that the applicant was not afforded a fair trial because the Crown could not establish its primary case as to whether the applicant was alone or in company, that the Crown failed to prove the facts alleged in the alternative case that there were more than two persons involved in the murders, and that the Crown denied the applicant the benefit of exculpatory DNA evidence regarding the hairs found in the hands of one of the victims.

10. It is immediately apparent that these grounds seek to re-agitate the basis of the applicant’s previous applications.

11. The second ground refers to the decision of the Court of Criminal Appeal dismissing the applicant’s appeal against his conviction: R v Milat [1998] NSWSC 795. The applicant submits that the Court of Criminal Appeal failed to perform an independent assessment of the prosecution evidence as to whether there was sufficient evidence to place before the jury, that the Court of Criminal Appeal “concocted a case to confirm the verdict of the jury” and failed to correct a miscarriage of justice. This submission flies in the face of the grounds of the appeal, which did not include a ground to the effect that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. Moreover, in refusing special leave to appeal the decision of the Court of Criminal Appeal, the High Court endorsed the correctness of the decision of the Court of Criminal Appeal: Milat v The Queen [2004] HCATrans 179.

12. The special facts or circumstances relied upon by the applicant to justify a further application consists of his right to a trial according to law. Whilst that right self-evidently exists, that is not a special fact or circumstance within the meaning of s 78 of the Act: Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [6] – [9].

13. I accept the submissions of the Crown that the applicant appears “unable to understand, or willing to accept, the Court’s determination” of his previous applications, that the present application raises matters that have previously been dealt with under the provisions of the Act, and that there are no special facts or circumstances which justify a consideration of the current application.

14. The application is dismissed.

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Decision last updated: 11 October 2017