R v Milat : a case study in cross-examination

651 Pages·2014·6.134 MB·English

by  Dan Howard

R v Milat
A Case Study in Cross-Examination
Dan Howard SC
Barrister
Visiting Professorial Fellow, School of Law,
University of Wollongong
Conjoint Associate Professor, School of Psychiatry,
University of New South Wales
LexisNexis Butterworths
Australia
2014
DEDICATION
To the Crown Prosecutors and Public Defenders of New South Wales, with
great admiration for the challenging and difficult work they do, day in and
day out, on behalf of the people of New South Wales, I respectfully dedicate
this work.
DH
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National Library of Australia Cataloguing-in-Publication entry
Author: Howard, Dan.
Title: R v Milat: A Case Study in Cross-Examination.
ISBN: 9780409336849 (pbk).
9780409336856 (ebk).
Notes: Includes index.
Subjects: Milat, Ivan — Trials, litigation, etc. Public
prosecutors — New South Wales.
Trial transcripts — New South Wales.
Prosecution — New South Wales.
Dewey Number: 345.9405042.
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FOREWORD
As the author kindly notes in his Preface, I was the Director of Public
Prosecutions for New South Wales at the time of the Milat trial and therefore
accountable overall for its conduct. It was a matter of great professional pride
and satisfaction to have Mark Tedeschi QC and Daniel Howard prosecuting
the trial, instructed and supported by Office of the Director of Public
Prosections staff members of the highest calibre. (Mark subsequently became
Senior Crown Prosecutor, and later was appointed AM; Dan was later
appointed a Deputy Senior Crown Prosecutor and SC.)
Prosecutors do battle in the courts — as reading this book will demonstrate
– but they do not win or lose cases; they strive professionally to ensure that
justice is done according to law and that the rights of all involved are
protected. It is safe to say in this case that justice was certainly done, and the
community should have been well satisfied with the performance of all in the
criminal justice system, especially the police and prosecutors.
In the criminal courts in Australia, we practise the accusatorial, adversarial
system we inherited from England. The Crown (the prosecution) accuses and
must formulate its case and prove it beyond reasonable doubt. The accused is
not required to prove anything. The process is adversarial — the Crown and
the accused are the parties ranged against each other and the judge takes a
neutral role, ensuring in an impartial manner that the rules are applied to
produce a fair trial. The ultimate decision of guilt (or non-guilt) is for the
jury.
The other main type of criminal justice system in the world (and there are
many variations) is the inquisitorial system (as practised in many European
countries, for example). It is sometimes said that the inquisitorial system,
involving as it does the magistrate or judge very much more in the
investigation and the framing and conduct of the proceedings, is better
enabled to find the truth of a matter. Nevertheless, the adversarial system also
aims by different means to establish the truth, and cross-examination is an
important mechanism in that search.
The Crown develops and puts forward its case. The accused may attack
that case and may adduce its own case in defence, but it is not obliged to —
an accused person may sit mute throughout a trial with (generally speaking)
no penalty for doing so. The question the jury must answer is not: ‘What is
the truth — what really happened?’; it is: ‘Has the Crown proved its case
beyond reasonable doubt (notwithstanding any attack by the defence and/or
any case put forward by the defence)?’.
Therefore, an accused person has a choice whether or not to give evidence
— a choice that will usually be exercised in accordance with legal advice. If he
or she does testify, he or she will be subject to the same procedures by which
any other witness will be bound, including cross-examination by the
opposing party. Any witness is first examined in chief by the party calling him
or her, then may be cross-examined by the other party, then (in very limited
circumstances) may be re-examined by the party calling. Cross-examination
must comply with certain rules (as must the conduct of the whole trial) and it
is still considered one of the most effective means available to test the
evidence and the reliability of a witness.
As with any professional activity, cross-examination may be done well and
effectively — or not so well. It is a skill to be learned, and by analysing
Tedeschi QC’s application of that skill many may be enabled to learn. This
book will be of obvious benefit to criminal advocates and to criminal lawyers
who wish to be advocates. It provides much to be learnt: the seven strategies
in the Preface are sound advice; the techniques of cross-examination indexed
throughout are an essential guide — this is a textbook, as much as a narrative.
But the book will also be of great interest to non-lawyers who remember
the Milat case (a case of great public interest for many reasons), who wish to
discover from an authoritative source just what happened, or who are curious
to see how a Crown case can be bolstered by an effective (and proper)
forensic attack on the evidence of an accused person.
As the author states in his Preface, to his knowledge this is a unique study
of a single cross-examination of an accused person in an Australian criminal
trial. One reason for that may be that while parts of cross-examinations in
both criminal and civil cases may be worth reporting (and learning from),
rarely will a complete cross-examination of one witness from one case —
especially the accused — be worth recounting, analysing and assessing in this
incisive and constructive way. This is one of those rare cases. It probably is
unique.
Nicholas Cowdery AM QC
Director of Public Prosecutions, New South Wales (1994–2011)
President, International Association of Prosecutors (1999–2005)
Adjunct Professor of Law
Barrister