R v Milat

[2005] NSWSC 920

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 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. It will be necessary to set out the details below. For the present, it suffices to say that, 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. Its detail will be set out below. 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.

6 The applicant’s submissions are extensive, running to more than 50 type-and hand-written pages. They are not apparently written by anyone experienced in the preparation of legal submissions and call for an amount of interpretation and summarisation. Although they are not set out in so many words, it seems to me that these are the grounds on which the applicant seeks his order -

A miscarriage of justice occurred because the trial judge altered the Crown case after the close of evidence in a manner that lost the applicant a chance fairly open to him of being acquitted. This defect in the conduct of the trial was not given due weight by the Court of Criminal Appeal whose judgment therefore lacked integrity. The High Court of Australia failed to recognise that fact and erred in refusing special leave to appeal.

7 The applicant’s grounds, complaints and arguments are set out in many different ways, but they all seem to depend on what happened after he adduced a certain piece of evidence at trial about his motor vehicle.

8 Both sides approached the trial on the basis that whoever had committed any of the offences had committed them all. The concession made by defence counsel in his closing address was consistent with that approach. It was the Crown case that the applicant was the person or one of the persons who had committed all the offences.

9 Mr Onions was the only witness who could describe the man who attacked him. His evidence was summarised in this way by Gleeson CJ -

Paul Onions, who was then aged twenty-four, was an English tourist on a working holiday in Australia. On 25 January 1990, he left Glebe, a suburb of Sydney, and travelled by train to Liverpool Railway Station. His intention was to hitchhike to Mildura to seek employment picking fruit. At around midday, Mr Onions arrived at the Liverpool Railway Station, and walked to the Hume Highway, where he spent about an hour walking in a southerly direction and trying to obtain a lift. At about 1.00pm he arrived at Lombardo's Shopping Centre at Casula. He went into a shop to buy a drink. When he came out of the shop he was approached by a man who offered him a lift. According to the Crown case, that man was the appellant.

In January 1990 the appellant, whose occupation was that of a road worker, was living with his mother. (In late 1993 or early 1994 he moved to a house at Cinnabar Street, Eagle Vale).

The man who spoke to Mr Onions took him to a 4 WD vehicle in a car park and said that it belonged to him. He invited Mr Onions to get in with him. Mr Onions' rucksack was placed on the back seat. Together the pair drove off in a southerly direction.

The man told Mr Onions that his name was Bill. He said he worked on the roads, that he was on holidays, and that he was on his way to visit friends in Canberra. He asked Mr Onions some questions which elicited the information that Mr Onions had no family or friends in Australia, and was travelling around the country. The man told Mr Onions that he lived in the Liverpool area, that he was an Australian but that his family came from Yugoslavia, and that he was divorced. Some of that information was true of the appellant. It is also information which the police recorded later that day after the events about to be described.

When Mr Onions gave the police, later that day, a physical description of the man who had given him a lift, he described the man as having a moustache like the cricketer, Merv Hughes. The following is a photograph of the appellant tendered in evidence.

10 His Honour included in the judgment a photograph of the applicant, wearing just such a moustache, and continued -

When, after the appellant's arrest in 1994, he was interviewed by the police, he denied that he had a moustache in January 1990. However, a photograph taken from a passport application made not long before showed the appellant with the same moustache as that depicted in the above photograph. It is not surprising that a young Englishman, seeking to describe the moustache to police, would do so by reference to a similar moustache worn by a well known Australian cricketer.

As the two men travelled south along the Hume Highway events took a nasty turn. The driver began to express vehement and controversial opinions, and Mr Onions became nervous. When they reached a point which was about 900 metres north of the turn off to the Belanglo State Forest, the driver stopped the vehicle. He gave an explanation which Mr Onions regarded as spurious. He then produced a revolver, which he pointed at Mr Onions, saying that he intended to rob him. Mr Onions noticed some rope protruding from a bag under the driver's seat. Mr Onions then took a wise course. He leapt out of the car and ran. The man chased him, and fired a shot. The man managed to catch Mr Onions for a time, but he broke free and ran onto the roadway. He stood in front of an ongoing vehicle forcing it to stop. He jumped into the vehicle. The alarmed driver of the vehicle made a 'U' turn and headed back north along the Hume Highway. She drove Mr Onions to the Bowral Police Station, where he reported the incident. Mr Onions' rucksack containing his belongings, including the "Next" shirt, was left behind.

The account of the incident, as given on 25 January 1990 by Mr Onions to Constable Nicholson, who was called as a witness, and whose occurrence pad was available, was in the following terms. The offender was said to be a man called "Bill", who was six feet tall, of slight build, with a dark complexion, black hair, a moustache like Merv Hughes, and black sunglasses. His family came from Yugoslavia. He was divorced. He was said to be in his mid thirties. The vehicle was described as a white or silver 4 WD, possibly Nissan or Toyota. The offender was said to be carrying a four inch barrel revolver which was loaded. He was said to work for the RTA (Roads and Traffic Authority) at Liverpool.

The appellant is not six feet tall. His height is about five feet eight inches. However, Mr Onions is only about five feet six inches tall, and in the circumstances it is hardly surprising that the aggressor might appear larger than in truth he was.
The evidence showed that in 1990 the appellant was often known, or referred to, as Bill. He owned and regularly drove a Nissan Patrol 4 WD vehicle. He had been employed as a road worker. His father came from Yugoslavia. He was divorced. He had a moustache like Merv Hughes the cricketer. He was not proved to have been on holidays at the time, or to have friends in Canberra. He denied holding certain racist views of the kind Mr Onions attributed to the man in question. Not all aspects of the physical description fitted the appellant. Nevertheless, taking everything into account, the jury were entitled to regard the contemporaneous description which Mr Onions gave of his attacker as strong evidence against the appellant. When to that is added the fact that a shirt which undoubtedly belonged to Mr Onions, and which had been left behind in his rucksack when he fled, was found at the appellant's mother's house with an old shirt belonging to the appellant, it is not difficult to understand how the jury could reasonably have come to the conclusion that the man who gave Mr Onions a lift was the appellant.

In 1994, Mr Onions identified a photograph of the appellant amongst a series of photographs shown to him by video. At the trial, the judge gave the jury the usual warnings about identification evidence, and the problems connected with photographs.

11 The evidence on which the applicant’s submissions are based was about the appearance of the motor vehicle driven by the man who attacked Mr Onions on 25 January 1990. When Mr Onions gave evidence at the committal in 1994 and at the trial in 1996 he described the vehicle in which he had been given a lift as having a number of features including chrome wheel trims and a spare wheel attached vertically at the rear. Mrs Berry, the driver who helped Mr Onions to get away, said that it had the spare wheel at the rear.

12 Although the applicant owned and drove a four-wheel drive vehicle which generally answered the description given by Mr Onions and Mrs Berry, it did not on 25 January 1990 have those two particular features. At a later time, but before the applicant was arrested, it was modified to incorporate those features.

13 When the police arrested the applicant they took possession of his vehicle and photographed it in its modified state.

14 During their evidence in chief Mr Onions and Mrs Berry were shown photographs of the applicant’s vehicle. Neither they nor the Crown realised that the photographs showed the modifications made after January 1990.

15 When cross-examined about the vehicle driven by the attacker, they were tested on their recollection and asked, among other things, whether they were sure about the descriptions they had given.

16 After the close of the Crown case the applicant gave and called evidence. For the first time it was revealed that the chrome wheel trims and the spare wheel had not been fitted to the applicant’s vehicle until some time after the day of the attack on Mr Onions. The Crown accepted that that was the fact. In dealing with this change of circumstances the Crown Prosecutor submitted in his closing address that Mr Onions and Mrs Berry were describing the applicant’s vehicle and must have been mistaken in the relevant parts of their evidence.

17 The applicant’s complaints about the summing-up include this passage -

The petitioner submits the Trial Judge erred in law when he turned the Crown’s final address allegation into evidence. As the jury verdict shows the Trial Judge rescued the Crown case by departing from the essential requirements of a trial according to law. The Petitioner submits, he addressed the case the Crown tendered to the Court and there was no opportunity available to the Petitioner to address the evidence the Trial Judge directed the jury to act upon.
…
The Trial Judge said this -
“The First Possibility, Mr Onions was correct about everything to do with the accused vehicle except his evidence that he saw a spare wheel on the back and chrome wheel trims on the vehicle, which were mistakes on his part. The Second Possibility, the accused picked Mr Onions up, but not in his own vehicle, it was someone else’s vehicle, that looked similar to the accused own vehicle.”
The trial Judge disadvantaged the Petitioner by departing from the rules of procedure and evidence of a trial according to law, by not requiring the Crown to establish the evidence the Crown relied upon.
The Judge erred in his summing up, when he withdrew from the jury their right to deliberate on evidence, new evidence raised after the close of both parties cases.
The Trial Judge directed the jury that the two possibilities were evidence that they could convict the accused upon; the verdict meant the jury acted on either Possibility One or Possibility Two.

18 One can put aside the applicant’s confusion about evidence, submissions on evidence and logically available conclusions on evidence. However, an examination of the summing-up shows that his Honour did not deal with the matter on the restricted basis contended for by the applicant. His Honour said this -

Mr Martin (defence counsel) says there was also a fundamental flaw in the Crown case in the description which Onions gave of the vehicle in which the man was travelling. Again, I propose to refer only briefly to those parts of the description of the vehicle which he have which do indeed correspond with the vehicle which the accused then drove.
The accused’s vehicle was certainly a four-wheel drive vehicle. It was a Nissan, silver (you will recall that Mr Onions described his previous indecision about whether it was sliver or white), it had two doors, it had bull-bars, a running board, big tyres and lambswool seat covers. It was certainly not what you would call a standard Nissan Patrol vehicle, and you will recall the evidence of the man who sold it to him – I cannot remember his name now – how this was a super-duper model, or a U-beaut model or some similar phrase. What is clear, or at least what is not now disputed by the Crown , is that the accused’s vehicle did not, as at January 1990, have chrome trims on the wheels, or a spare tyre mounted on the rear, as Onions had described the vehicle he travelled in.
In relation to the chrome, Onions only recalled the fact, he said, after seeing the photographs of the vehicle after he had first given evidence here. You may think that there could be an element of displacement effect there, but that is a matter for you. In fact, the accused’s vehicle did not have them when photographed going through a red light twelve months later, on 16 January 1992 (sic: it was 1991, as His Honour later reminded the jury). That is Ex Y. Similarly, after some confusion on the point, the spare tyre mounting on the rear of the vehicle was not installed until 21 December. That evidence comes from the workshop diary, Ex 9.

Mrs Berry also described the vehicle which she saw as having a spare tyre on the back. She said the spare wheel had a wheel cover. Mr Onions told you that he had first noticed the spare tyre on the rear when he walked around the back of the vehicle to throw his backpack into the back of it. He said that this wheel looked neat and clean, and he said that he had never seen one like that before.
There are, I suggest, three possibilities for you to consider. First, that Onions was correct about everything to do with the accused’s car except the back wheel and the chrome trims, which were mistakes on his part. The Crown asks you to accept such an argument because everything else about the car tallied, and (as I have said) it was by no means a standard Nissan Patrol. You may think that, although Onions may have been mistaken about the chrome wheel trims, it is perhaps a little difficult to see how he could have been mistaken about the spare tyre fitting, which he said that he had noticed because he had never seen one before. It is a matter for you. You can accept or reject that suggestion according to your own independent assessment of the evidence.
The second possibility is that it was the accused who picked Onions up, but that it was not his own vehicle but one similar to it. The man who picked Onions up did describe the vehicle as his own when he invited Onions to join him by saying “That’s my vehicle over there”, when they were at Lombardo’s Shopping Centre. You may think that that does not necessarily denote a claimed ownership in those circumstances. He would hardly have been likely to have said “That’s the vehicle I have just borrowed from a friend” to a hitchhiker. Again, that is a matter for you.
The third possibility is that it was not the accused’s vehicle and therefore that it was not the accused who picked Onions up on that day. That is the argument for which Mr Martin contends. If that is a reasonable possibility in light of all this evidence, the Crown must fail in relation to the third charge.

19 The Crown had not contended for the second possibility and his Honour did not say that it had. Later in the summing-up his Honour said this -

Mr Onions also described the vehicle driven by the man who attacked him as having a spare tyre mounted on the rear, as did Mrs Berry who picked Mr Onions up when he escaped. The Crown does not now dispute that, as at January 1990, a spare wheel or spare tyre was not mounted on the back of the vehicle, the Nissan Patrol which the accused then owned.

The issue in this case, however, is simply whether it was the accused who attacked Mr Onions. The accuracy of the description which Mr Onions gave of the vehicle which the man was driving is relevant as but one factor in judging the reliability of his identification of the accused. This means that his identification of the accused is more or less reliable, depending upon the accuracy or otherwise of the description which he gave not only of the accused himself but also of the vehicle which he said the man was driving.

I put three possibilities to you on Thursday which you were able to consider. First of all that Onions was correct about everything to do with the accused’s vehicle except the back wheel and the chrome wheel trims, which were mistakes on his part. The second possibility I said is that the accused did pick Onions up, but he was not in his own vehicle but one very similar to it. The third possibility, I said, is that it was not the accused’s vehicle and therefore it was not the accused who picked Onions up on that day. I went on to say that, if that is a reasonable possibility in light of all this evidence, the Crown must fail in relation to this third charge.

It has been pointed out to me, and it is the fact, that the Crown prosecutor did not put that second possibility to you expressly in the course of his final address, and that Mr Martin had responded in his final address only to what the Crown had put to you. That is an unfortunate situation, and I do not propose to debate with anybody where the blame may lie. There were of course a number of matters which Mr Martin could have put to you in answer to that second possibility. The first thing is that it was not put to the accused himself in the course of cross-examination, when you may have been able to judge his spontaneous reaction to such a suggestion. It was not put to him either that he would have access to such a vehicle which was similar to his own – which did not have a wheel on the back or chrome trims on the other wheels. If this argument had been put, Mr Martin may well have asked you why would the accused have used some other vehicle when he had his own? Those are all matters which you should take into account in judging whether the second possibility – that it was the accused in someone else’s vehicle – whether that is a reasonable one which you should take into account.

I pointed out to you that everything else about the vehicle which Mr Onions described fitted the accused’s vehicle except the chrome wheel trims and the spare wheel mounted on the back. It was a four wheel drive, it was a Nissan, it was silver, it did have two doors, it had bullbars and a running board, big tyres and lambswool seat covers. It was certainly not, you may think, a standard Nissan Patrol vehicle. There was some evidence from the person who sold it to the accused that such a vehicle was not a standard Nissan Patrol. But – and this is a matter of some significance – it did not have chrome wheel trims and the mounted spare wheel on the back which Mr Onions described.

There is, you may think, considerable room for error in relation to the chrome wheel trims, which Mr Onions said that he recalled only during the course of the trial after he had been shown photographs of the accused’s own Nissan Patrol vehicle – which, by the time the photographs were taken, did have chrome trims on the wheels. I pointed out to you on Thursday that you could think that that was a good example of a degree of displacement effect from those photographs, but that is very much a matter for you.

Mr Martin had stressed the evidence which Mr Onions gave that he had first noticed the spare wheel on the rear when he walked around to the back of the vehicle to throw his backpack in to the back, because he said that he had never seen one before. Mr Martin said that there could not, in those circumstances, be any mistake involved. The vehicle which he saw must have had a mounted spare wheel on it, and therefore you cannot be satisfied beyond reasonable doubt that his identification of the accused in 1994 was a reliable one.

On the other hand, the Crown stressed the extraordinary accuracy of every other part of the description of both the man who attacked him and the vehicle which he was driving, to argue as part of its primary case that you should be satisfied that Onions must have made a mistake in relation to the mounted spare wheel as well. It may or may not be significant that the mounted rear wheel was not part of the original description which Mr Onions gave to the police up at Bowral, and that appears to have surfaced only in 1994. It is a matter for you to consider how significant that fact may be. You are also permitted to consider whether, so strongly does the description given by Mr Onions fit the accused, Mr Onions must have been mistaken about the car and the accused must have been driving a different car.

20 The applicant submits that the Crown ought to have recalled Mr Onions and Mrs Berry after the close of the defence case so as to cross-examine them and establish, if it was the fact, that they were indeed mistaken about the rear wheel and the chrome trims. It was implicit in the submission that the jury were not entitled to find that either witness had made either of the mistakes contended for by the Crown unless the witness had frankly said so in evidence. The submission must be rejected. The jury were entitled to conclude that the witnesses were mistaken in the way contended for by the Crown.

21 The late emergence of the applicant’s evidence about when the chrome trims and the rear wheel were fitted to his vehicle left the Crown in an awkward position. I do not say so critically of the applicant and those who represented him. No doubt it suited them tactically to present the evidence in the manner in which they did, and that is something that they were entitled to do. That having been done, however, it is not open to the applicant to complain about the way the Crown responded.

22 The thrust of the applicant’s submissions is that his Honour left only two possibilities to the jury, either of which would leave the evidence of Mr Onions essentially undamaged, and that his Honour left for the jury’s consideration a submission (that the applicant might have been using someone else’s vehicle) favourable to the Crown case that the Crown had never made. As the extracts from the summing-up show, however, that submission is wrong. The parts of the summing-up relied on have been taken out of context. His Honour reminded the jury of the logical possibilities contended for and summarised the available arguments one way and the other.

23 Not only has the applicant misled himself by taking so limited a view of what the trial judge said to the jury; he appears to have lost sight of the substantial point at issue at trial over this evidence. The kind of vehicle driven by the attacker was a matter incidental to a more important enquiry, namely the identity of the attacker. The principal Crown contention, dependent upon Mr Onions’ evidence, was that the applicant was his attacker. The evidence of the vehicle driven by the attacker was not, of course, unimportant. The Crown wished to establish the link in part by evidence which compared the vehicle driven by the attacker with the vehicle owned and generally used at the time by the applicant.

24 Of course, there was a reason to conclude that Mr Onions and Mrs Berry were really describing the applicant’s vehicle. There was, as Gleeson CJ pointed out, the well-known displacement effect about which judges commonly warn juries in relation to evidence about identification by photograph. The jury were entitled to reason that in giving evidence about the additional features of the vehicle, Mr Onions and Mrs Berry were describing not what they had seen in January 1990 but what they had seen in the photographs. Notwithstanding an assertion to the contrary in the applicant’s written submissions, the applicant raised in the Court of Criminal Appeal, and the Court of Criminal Appeal dealt with, a complaint that his Honour had unfairly and inappropriately left for the jury’s consideration the possibility that Mr Onions had been mistaken in his evidence about the accessories on the attacker’s vehicle. Gleeson CJ said this -

It is convenient at this stage to deal with a related argument not appearing in the grounds of appeal, but presented in submissions to the court. The appellant complains 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. The appellant rightly observed that nobody put to Mr Onions, when he was giving his evidence, the possibility that he had been mistaken about that matter.

In considering this argument, it is important to bear in mind the way the issue unfolded at the trial. Reference to this has been made above. At the time of the conclusion of the Crown case, it was not apparent that there was any issue as to whether the appellant's 4 WD vehicle in fact had a vertically mounted rear spare wheel in January 1990. It was only in the defence case that it emerged that the vehicle had no such wheel in January, although one was put there later.

In all the circumstances it was reasonable, and not unfair, to permit the Crown to argue, as one possible alternative (the other alternatives that were put are not presently relevant) that Mr Onions had made a mistake about this matter. It did not form part of his description of the vehicle when he spoke to the police on 25 January 1990, and it appears first to have emerged in 1994. So far as his courtroom evidence was concerned, it also appears to have emerged in the context where he was shown photographs that could have suggested to him something which caused his mistake.

25 But even an unexplained error in the description of the attacker’s vehicle, and even a serious and unexplained discrepancy between the description of the attacker’s vehicle and the applicant’s vehicle, was not likely to determine the issue raised at trial. The evidence directly and indirectly linking the applicant to the attack on Mr Onions was remarkable in its breadth and detail. It will be recalled that Mr Onions got away from his attacker by the skin of his teeth, leaving in the attacker’s vehicle his backpack containing his distinctive shirt. That shirt was found with a shirt of the applicant’s at the house where the applicant was living. Both the applicant and the attacker had what Mr Onions called a “Merv Hughes” moustache. Mr Onions identified the applicant from a series of photographs. I do not find it necessary to review the whole of the evidence about the appearance and attributes of Mr Onions’ attacker. They are reviewed in the summing-up and the judgment of the Court of Criminal Appeal. I note the conclusion of Gleeson CJ, with whom the other members of the Court agreed, that the Crown case on the detention of Mr Onions was strong. I note again the important concession made by defence counsel which, as Hunt CJ at CL told the jury, meant that the Crown no longer had to exclude any reasonable possibility that the offender was or the offenders were outside the Milat family. In pronouncing sentence his Honour said this -

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.

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.

27 The application is refused.

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