Citation: [2017] NSWSC 1378
Court: Supreme Court of New South Wales
Date: 10 October 2017
Judge(s): Latham J
Background
The applicant was convicted of seven counts of murder and one count of detaining a person for advantage following a lengthy trial. His conviction was upheld by the Court of Criminal Appeal, and the High Court of Australia refused special leave to appeal that decision in 2004.
This was the applicant's seventh application under the Crimes (Appeal and Review) Act 2001 (NSW) seeking an inquiry into his convictions. The previous six applications had all been refused, each addressing substantially the same complaints about the conduct of the trial and the Crown's approach to proving his guilt.
Legal Issues
- Whether the current application raised "special facts or circumstances" sufficient to justify further consideration under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW).
- Whether the applicant's claimed "unease" about the integrity of the trial process and the Court of Criminal Appeal's judgment constituted a valid basis for a fresh inquiry.
- Whether the Crown's approach to proving guilt (without establishing whether the applicant acted alone or in company) represented an ongoing miscarriage of justice warranting review.
Decision
Latham J refused the application at the threshold stage, finding that it failed to overcome the hurdle imposed by s 79(3) of the Act. That provision requires an applicant making a repeat application to demonstrate special facts or circumstances before the court will consider the matter further.
The applicant advanced two grounds: "unease" about the integrity of the trial process, and "unease" about the integrity of the Court of Criminal Appeal's judgment. Both grounds, when examined, rested on the same arguments that had been raised and rejected across previous applications. The central complaint, that the Crown had not established whether the applicant acted alone or in company, had been considered and dismissed on at least three prior occasions.
On the second ground, Latham J observed that the applicant's criticism of the Court of Criminal Appeal was inconsistent with the actual grounds of his appeal, which had not included a ground that the jury's verdict was unreasonable. The High Court's refusal of special leave had, in any event, endorsed the correctness of the Court of Criminal Appeal's reasoning.
The applicant sought to frame his general right to a fair trial as the "special fact or circumstance" required by the Act. Latham J rejected this, following the approach in Application of Peter James Holland [2008] NSWSC 251, which established that a right to trial according to law does not, by itself, constitute a special fact or circumstance within the meaning of s 78. The court accepted the Crown's submission that the applicant appeared either unable or unwilling to accept the court's prior determinations.
Orders Made
- The application was dismissed.
Key Takeaways
- Under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW), a repeat application for a post-conviction inquiry will not proceed unless the applicant demonstrates special facts or circumstances justifying further consideration.
- A general assertion of the right to a trial according to law does not constitute a "special fact or circumstance" for the purposes of s 78 of the Act, as confirmed by reference to Application of Peter James Holland [2008] NSWSC 251.
- Repackaging previously rejected arguments in marginally different language does not transform them into new grounds capable of satisfying the threshold test.
- The Supreme Court confirmed that the s 78 review procedure is not an additional avenue of appeal, and applications that effectively seek to re-litigate matters already determined in the original proceedings, on appeal, and in prior review applications will be refused.
- Where the High Court has refused special leave to appeal a Court of Criminal Appeal decision, that refusal carries weight as an endorsement of the appellate court's reasoning, strengthening the basis for dismissing subsequent review applications that attack the same decision.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(3)
Cases:
- 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 & Review) Act 2001 [2010] NSWSC 1292
- Application by Ivan Robert Marko Milat pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2014] NSWSC 434
- Milat, Ivan Robert Marko: Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209
- R v Milat [1998] NSWSC 795 (Court of Criminal Appeal)
- Milat v The Queen [2004] HCATrans 179 (High Court of Australia)
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251