Citation: Application by Ivan Robert Marko Milat pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2014] NSWSC 434
Court: Supreme Court of New South Wales
Date: 22 April 2014
Judge(s): Adamson J
Background
The applicant was convicted in 1996 on seven counts of murder and one count of detaining for advantage, following a trial before Hunt CJ at CL and a jury. The seven victims were backpackers who disappeared after leaving Sydney between December 1989 and April 1992. The applicant was sentenced to penal servitude for life on each murder count.
His appeal to the Court of Criminal Appeal was dismissed in 1998, and a subsequent application for special leave to appeal to the High Court was also unsuccessful. The applicant had previously made multiple applications for inquiry into his conviction and sentence under Part 7 of the Crimes (Appeal and Review) Act 2001, all of which had been refused.
This application was the applicant's fifth attempt under Part 7 of the Act. He challenged aspects of the trial judge's directions to the jury, arguing that the Crown had failed to discharge its burden of proof and that he had been deprived of the benefit of exculpatory DNA evidence.
Legal Issues
- Whether the Crown's failure to prove the applicant's precise role in the murders (specifically, whether he acted alone or as part of a joint criminal enterprise) amounted to a failure to discharge the burden of proof, giving rise to a doubt or question as to guilt under s 79(2) of the Act.
- Whether the applicant was deprived of the exculpatory benefit of DNA evidence showing that hairs found in a deceased victim's hand did not belong to any member of the Milat family.
- Whether the application raised any special facts or special circumstances justifying further action under s 79(3), given that the matter had previously been dealt with under Part 7.
Decision
Adamson J dismissed the application. On the burden of proof ground, her Honour found that the applicant's argument rested on the erroneous proposition that the Crown was obliged to prove the precise nature of his involvement, including whether he acted alone or with others. The trial judge's directions accurately reflected the law: the Crown was required to prove beyond reasonable doubt that the applicant participated in a criminal enterprise in relation to each murder, whether alone or in company. That obligation was properly discharged.
On the DNA evidence, Adamson J found no substance in the contention that the applicant was deprived of the exculpatory value of those results. The trial judge had directed the jury to the expert evidence excluding the hairs as belonging to any member of the Milat family, and had properly explained the limited significance of that finding in the context of the Crown's case. Neither ground was capable of producing any unease or sense of disquiet about allowing the convictions to stand.
Her Honour also refused to consider the application on the separate basis that the matter had already been dealt with in multiple prior proceedings, including three previous Part 7 applications. The present application substantially replicated those earlier applications. No special facts or special circumstances were identified that would justify taking further action, and Adamson J refused to consider or deal with the application under s 79(3).
Orders Made
- Application refused pursuant to s 79(3) of the Crimes (Appeal and Review) Act 2001.
Key Takeaways
- Under s 79(2) of the Crimes (Appeal and Review) Act 2001, action is only warranted if the material causes a sense of unease or disquiet about allowing a conviction or sentence to stand; a mere disagreement with jury directions does not meet that threshold.
- The Crown is not required to prove a convicted person's precise role in a criminal enterprise (for example, whether they acted alone or with others) in order to discharge the burden of proof on a murder charge, provided the jury is properly directed on what must be established.
- Where DNA evidence was properly placed before the jury and accurately explained in the summing up, a subsequent claim that its exculpatory value was not fully appreciated does not, without more, raise a doubt or question as to guilt.
- Section 79(3) permits the Supreme Court to refuse to consider a Part 7 application where the matter has previously been dealt with under that Part and no special facts or special circumstances are demonstrated; this provision operates as a meaningful bar against repeated applications advancing substantially the same grounds.
- In dismissing this application, the Supreme Court reaffirmed that the Part 7 review mechanism is not a further avenue of appeal and is not an opportunity to re-run a trial on paper.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases:
- Application of Peter James Holland under s 78 of the Crimes (Appeal and Review Act) 2001 [2008] NSWSC 251
- R v Milat [1998] NSWSC 795
- Milat v The Queen [2004] HCATrans 179
- R v Ivan Robert Marko Milat [2005] NSWSC 920
- Milat [2006] NSWSC 1391
- Milat: Inquiry into conviction and sentence [2008] NSWSC 732
- Milat: Application for Inquiry into Conviction and Sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2010] NSWSC 1292