Milat v The Queen - [2004] HCA 17

HIGH COURT OF AUSTRALIA
McHUGH J
IVAN ROBERT MARKO MILAT APPLICANT
AND
THE QUEEN RESPONDENT
Milat v The Queen
[2004] HCA 17
24 February 2004
S230/2002
ORDER
Summons and application dismissed.

Representation:
No appearance by the applicant
G E Smith for the respondent (instructed by Solicitor for Public Prosecutions (New South Wales))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Milat v The Queen
Practice and procedure – Application for special leave to appeal – Oral submissions – Right to make oral submissions – International practice – Power of Court to order production of prisoner for purpose of making oral submissions in person or by video link – Status of applicant for special leave – Discretionary factors.
Words and phrases – "application for special leave to appeal".
High Court Rules, O 69A rr 3, 15.

McHUGH J. The applicant, an indigent prisoner, filed a summons on 17 December 2003 seeking alternative orders. The first order is that he be physically brought before the Court to conduct his special leave application that has been filed in the Court. The alternative order is that he be permitted to appear via video link using the facilities that are available at Goulburn Correctional Centre, where the applicant is presently in custody serving a life sentence.
The application for special leave is brought in respect of a decision of the Court of Criminal Appeal of New South Wales. That Court dismissed an appeal against convictions in July 1996 on seven counts of murder and one count of detaining for advantage. Hunt CJ at CL had sentenced the applicant to life imprisonment.
The applicant's application for special leave necessarily requires an extension of time within which to file that application. The order of the Court of Criminal Appeal dismissing his appeal was delivered on 26 February 1998. The application for special leave was not filed until 24 June 2002. That was about four and a quarter years later than the time required by O 69A r 3 of the High Court Rules.
The applicant claims that the conduct of his trial miscarried in relation to evidence of identification. He claims that the trial judge permitted the Crown to put a case to the jury that was inconsistent with the testimony of its own witnesses without either cross‑examining those witnesses as hostile or putting to them that their evidence was mistaken. The applicant also claims that the trial judge erred by putting alternative cases to the jury, one of which had not been relied on by the Crown. He argues that these errors affected the evidence on the detaining for advantage count and that the jury may have used the conviction on that count to convict him on the murder counts. Accordingly, he claims there has been a miscarriage of justice and that all of his convictions are bad and should be set aside.
The Crown responds that the particular evidentiary issue…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Milat v The Queen

Details

AGLC: Milat v The Queen [2004] HCA 17
Case: [2004] HCA 17
Decision Date: 24 February 2004

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal by Ivan Milat against the decision of the Court of Criminal Appeal of New South Wales. The core of the dispute revolved around Mr Milat's right to make oral submissions in person or via video link during the special leave hearing before the High Court of Australia.

The High Court was required to determine whether it possessed the power to order the production of a prisoner for the purpose of making oral submissions, and if so, under what circumstances such an order should be made. The Court also considered the status of an applicant for special leave and the discretionary factors relevant to such an application.

McHugh J, in dismissing the summons and application, noted that while the High Court has the power to order the production of a prisoner, this power is discretionary and not routinely exercised. His Honour considered the international practice and the specific circumstances of the case, ultimately concluding that it was not appropriate to grant the application for oral submissions. The summons and application were therefore dismissed.

Orders

Orders of the court

Summons and application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HUGH J

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Ratio Decidendi

Legal Principle Established

Established by: HUGH J

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