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R v Milat

R v Milat

Case [2005] NSWSC 920 27 October 2005

Jurisdiction

Breach of Contract

Res Judicata

Admissibility of Evidence

Causation

Vicarious Liability

Criminal Law

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Reported Decision:
157 A Crim R 565

New South Wales

Supreme Court

CITATION:
Regina v Ivan Robert Marko Milat [2005] NSWSC 920

HEARING DATE(S): Written application

JUDGMENT DATE :

27 October 2005

JUDGMENT OF:
Barr J at 1

DECISION:
Application for an order under s474D Crimes Act refused

PARTIES:
Regina, Ivan Robert Marko Milat

FILE NUMBER(S):
SC 2005/71003

COUNSEL:
Not applicable

SOLICITORS:
Crown: S Kavanagh
Applicant: In person

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

27 OCTOBER 2005

2005/71003 REGINA v IVAN ROBERT MARKO MILAT
JUDGMENT

1 HIS HONOUR: Ivan Robert Marko Milat has applied to the Court for an order under s474D Crimes Act for an inquiry into his convictions for one count of detaining for advantage and seven counts of murder. He has asked for an order referring the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act: see Crimes Act s474E (1)(b).

2 The Court may direct an inquiry into a conviction only 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: s474E (2). A doubt about the guilt of an applicant arises if the material relied on causes unease or a sense of disquiet in allowing the conviction to stand: Varley v Attorney General (1987) 8 NSWLR 30 at 48; R v Rendell (1987) 32 A Crim R 243.

3 The applicant was convicted of the offences on 27 July 1996 after a trial before Hunt CJ at CL and a jury. On each count of murder his Honour sentenced the applicant to imprisonment for life and for the offence of detaining for advantage to imprisonment for six years.

4 The applicant appealed to the Court of Criminal Appeal against his convictions and his appeal was dismissed. He applied for special leave to appeal to the High Court of Australia against the order of the Court of Criminal Appeal and his application was refused.

5 This is how Gleeson CJ, who presided in the Court of Criminal Appeal, described the facts of the case -

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…

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 R v Milat

Details

AGLC: R v Milat [2005] NSWSC 920
Case: [2005] NSWSC 920
Decision Date: 27 October 2005

CaseChat Overview and Summary

Ivan Robert Marko Milat applied to the Supreme Court for an order under s474D of the Crimes Act for an inquiry into his convictions for one count of detaining for advantage and seven counts of murder. He sought an order referring his case to the Court of Criminal Appeal as an appeal under the Criminal Appeal Act. The court was required to decide whether there was a doubt or question as to the applicant's guilt, mitigating circumstances, or any part of the evidence in the case. The applicant argued that a miscarriage of justice occurred due to the trial judge altering the Crown's case after the close of evidence, which deprived him of a fair chance to be acquitted. The court considered the evidence presented, including the identification of the applicant by the sole survivor of the attacks, Paul Onions, and the physical evidence linking the applicant to the crimes. The court found that the evidence directly and indirectly linking the applicant to the attacks was remarkable in its breadth and detail, and the jury's verdicts were inevitable. The court concluded that there was no doubt or question about the guilt of the applicant arising from the material he relied on and refused the application.

Orders