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2
Supreme Court 14 December 2006

MILAT

[2006] NSWSC 1391

Homicide
CRIMINAL LAW APPLICATION FOR AN ORDER UNDER S 474D SECOND APPLICATION MADE

Citation: MILAT [2006] NSWSC 1391
Court: Supreme Court of New South Wales, Common Law Division
Date: 14 December 2006
Judge(s): McClellan CJ at CL

Background

The applicant, convicted of one count of detaining for advantage and seven counts of murder, applied to the Supreme Court under section 474D of the Crimes Act 1900 for an inquiry into his convictions. He sought an order referring the whole case to the Court of Criminal Appeal to be dealt with as an appeal. The applicant represented himself.

This was the second such application under section 474D. The first had been considered and refused by Barr J in October 2005, after extensive submissions from the applicant. That earlier decision found that no doubt or question about the applicant's guilt arose from the material relied upon.

The current application raised concerns about the conduct of the trial judge, particularly regarding how the evidence of a witness (referred to as Mr Paul Onions) and a vehicle description were handled in the summing-up. The applicant contended that the trial judge had misdirected the jury and introduced matters not properly established by the Crown.

  • Whether the material in the second application raised a doubt or question as to the applicant's guilt sufficient to warrant referral to the Court of Criminal Appeal
  • Whether the grounds advanced had already been determined at trial, on appeal, or in the reasons for refusing the first section 474D application
  • Whether the trial judge's summing-up improperly directed the jury to act on evidence not established by the Crown
  • Whether the trial judge had permitted the Crown to split its case, or introduced new allegations through his treatment of witness evidence

Decision

McClellan CJ at CL carefully considered the applicant's written submissions alongside the earlier decision of Barr J, the decisions of the Court of Criminal Appeal, and the trial judge's remarks on sentence. His Honour was satisfied that each ground advanced in the present application had already been considered by Barr J in the first section 474D application.

On the specific complaint that the trial judge directed the jury to act on evidence not established by the Crown, his Honour found this characterisation was incorrect. The trial judge's summing-up addressed different perspectives on evidence already admitted at trial, rather than introducing any additional evidence. The reference to "an unfortunate situation" in the summing-up related to the fact that neither party had addressed a particular analytical perspective, not to the introduction of new material.

His Honour adopted the reasoning from the earlier section 474D decision, which had found that the parts of the summing-up relied on by the applicant had been taken out of context. The trial judge had reminded the jury of logical possibilities and summarised available arguments on both sides, which he was entitled to do.

McClellan CJ at CL accepted the Crown's submission that each of the seven grounds had been the subject of specific grounds of appeal adjudicated in the Court of Criminal Appeal and considered by the High Court on a special leave application, as well as adjudicated in the first section 474D petition. Nothing in the current application provided a basis for concluding that any doubt or question as to guilt arose, or that any mitigating circumstance existed to justify referral. His Honour stated that he had no unease and no sense of disquiet in allowing the convictions to stand.

Orders Made

  • The application under section 474D of the Crimes Act 1900 is refused.

Key Takeaways

  • Section 474D of the Crimes Act 1900 is not intended to provide a convicted person with a further avenue of appeal after conventional appeal avenues have been exhausted.
  • Where grounds advanced in a section 474D application have already been fully considered at trial, on appeal, or in a prior section 474D application, the court may refuse to entertain them again.
  • A summing-up that draws the jury's attention to different analytical perspectives on evidence already admitted does not constitute the introduction of new evidence, and does not amount to directing the jury to act on evidence not established by the Crown.
  • Refusing the application, McClellan CJ at CL found no doubt or question as to the applicant's guilt in the material presented, applying the same standard articulated by Barr J in the first application.
  • A second section 474D application relying on substantially the same grounds as a previous refused application will not ordinarily succeed where no new material raising genuine doubt as to guilt is advanced.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), sections 474D and 474E
- Criminal Appeal Act (NSW)

Cases:
- MILAT [2005] NSWSC (Barr J, 27 October 2005) (first section 474D application, unreported)
- Decisions of the Court of Criminal Appeal (referenced but not specifically cited in the provided text)
- High Court special leave application (referenced but not specifically cited in the provided text)