Milat - Application for Inquiry into Conviction and Sentence pursuant to s 78 of the Crimes (Appeal & Review) Act 2001

[2010] NSWSC 1292

CITATION:	Milat - Application for Inquiry into Conviction and Sentence pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2010] NSWSC 1292
HEARING DATE(S):	On the papers
JUDGMENT DATE :	11 November 2010
JURISDICTION:	Criminal
JUDGMENT OF:	McClellan CJatCL
DECISION:	Application refused.
CATCHWORDS:	CRIMINAL LAW - fourth application made - appeal
LEGISLATION CITED:	Crimes (Appeal & Review) Act 2001
CASES CITED:	R v Milat (1998) NSWSC 795
PARTIES:	Ivan Robert Marko Milat

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

THURSDAY 11 NOVEMBER 2010

MILAT, Ivan Robert Marko

APPLICATION FOR INQUIRY INTO CONVICTION AND SENTENCE PURSUANT TO S 78 OF THE CRIMES (APPEAL AND REVIEW) ACT 2001

DECISION

1 HIS HONOUR: Mr Ivan Robert Marko Milat has made an application pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 seeking an inquiry into his conviction for 7 counts of murder and one count of detaining for advantage. The present application is the fourth application he has made for review of his conviction. Each of the previous three applications has been declined.

2 The application is hand-written and raises three issues for consideration. Those issues are:

1. Unease over the reliability of the Crown’s primary evidence.
2. The availability of new evidence.
3. The fact that at his trial, DNA evidence did not implicate him in the crime and there was also cogent evidence of an alibi.

3 The latest application must be considered pursuant to Part 7 of the Crimes (Appeal and Review) Act. Relevant portions of s 78 and 79 of that Act are as follows:

“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.
…



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.
…

(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.”

4 I have considered Mr Milat’s submission together with the submissions on behalf of the Attorney-General.

5 Mr Milat was convicted following a trial with a jury. He appealed to the Court of Criminal Appeal. That appeal failed. Gleeson CJ who was a member of that court said in his reasons for judgment that “the Crown built up a powerful circumstantial case against the appellant”: see R v Milat (1998) NSWSC 795. Since the appeal was dismissed as I have indicated Mr Milat has made three applications for the review of his conviction. All have been declined.

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.

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