R v Milat : a case study in cross-examination [1 ed.] 9780409336856, 0409336858

Table of contents :
Cover Page
Full Title
Dedication
Copyright
Foreword
Publisher’s Note
Preface
Table of Contents
Chapter 1 The Background to the Backpacker Murders Trial
Chapter 2 Day One of Cross-Examination 18 June 1996
Chapter 3 Day Two of Cross-Examination 19 June 1996
Chapter 4 Day Three of Cross-Examination 20 June 1996
Chapter 5 Concluding Remarks
Appendix 1 Trial Exhibit Photographs
Appendix 2 Trial Exhibit Diagrams
Index

Citation preview

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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Howard, Dan. R v Milat: A Case Study in Cross-Examination. 9780409336849 (pbk). 9780409336856 (ebk). Includes index. Milat, Ivan — Trials, litigation, etc. Public prosecutors — New South Wales. Trial transcripts — New South Wales. Prosecution — New South Wales. 345.9405042.

© 2014 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Futura and Minion Pro. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

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

PUBLISHER’S NOTE TRANSCRIPT The transcript of the trial of Regina v Ivan Robert Marko Milat before the Supreme Court of New South Wales Criminal Division has been reproduced with the permission of the Department of Attorney General and Justice New South Wales. Residential addresses have been anonymised in the transcript by removing the street number and name. In addition, where necessary the Publisher has inserted the location in square brackets. The insertions in square brackets do not form part of the official court transcript. Please note that the suburb Hill Top is spelt as one word throughout the official court transcript. © State of New South Wales through the Department of Attorney General and Justice and reproduced with the approval of the Supreme Court of New South Wales. PHOTOGRAPHS AND DIAGRAMS The photographs included in Appendix 1 and the diagrams included in Appendix 2 were exhibits at the trial of Regina v Ivan Robert Marko Milat and have been reproduced with the permission of the NSW Police Force. © State of New South Wales through the NSW Police Force.

PREFACE This book is an annotated study of a cross-examination of an accused in a major criminal trial, and reproduces the whole of the cross-examination.1 Why write such a book? There are several reasons. The story behind the 1996 trial of serial killer Ivan Milat on seven counts of murder and one count of ‘detain for advantage’, while extremely tragic, is a gripping one. After a trial lasting nearly three months, the accused took the witness stand and gave his account of events, in which he denied any involvement in these horrific crimes. Then an inspired, careful and methodical cross-examination by a highly skilled prosecutor, Mark Tedeschi QC, drawing on the mass of incriminating evidence assembled by one of the largest police task forces ever established in Australia, emphatically demonstrated the overwhelming strength of the Crown’s case to the extent that the defence case unravelled and was exposed for the sham it was. A study of this cross-examination reveals much about the art of advocacy and of questioning, and should greatly reward the reader who aspires to lift their skills as an advocate and communicator to a higher level. It will, I believe, appeal to barristers and any lawyer who wishes to improve their courtroom skills, and to anyone involved in the process of interviewing, interrogation or mediation. It will also appeal to the general reader who is interested in the processes of criminal justice. I also hope that this book will give some essential guidance to the lawyer who has toyed with the idea of prosecuting or defending in a criminal trial but has never done so, possibly through the understandable sense of apprehension that such a grave responsibility gives rise to. Anyone who has ever acted as counsel in a criminal trial, for the first time, has shared that

sense of apprehension, and there is no better remedy for it than to study the lessons to be gained from other criminal trials that have gone before. Nearly 40 years ago, like many newly minted lawyers, I began my legal career as an articled clerk and then in the solicitors’ branch of the profession, and thoroughly enjoyed the opportunities that this presented to provide legal services to clients from many walks of life. I found myself increasingly drawn to courtroom advocacy and I conducted a lot of appearance work in various courts. Eventually, I reached the stage where I thought that, if I wished to grow as an advocate, I would need to start doing jury trials. Any young lawyer who has reached this point will know what a personal ‘Rubicon’ this is; as a defender or prosecutor of someone accused of serious crime, you take on a whole new level of responsibility and you will play a major part in a process that may have grave consequences for the accused’s liberty. Being a competent black letter lawyer is a pre-requisite, but you also need to be able to creatively and critically analyse evidence, and before you can do that you need to master your case and gain an intimate knowledge of its facts — the ‘who, how, what, where, why and when’ — and the chronology of its events. You need to reflect on the human emotions, desires and motivations that may be present in the key players involved in the events, and get your mind into the times when, and places where, the relevant facts occurred. On top of all of this, you need to be an effective questioner and interrogator of witnesses, and an effective and engaging communicator to the judge and, above all, to the jury. The presumption of innocence is a cornerstone of our criminal justice system. An important corollary of this is that it is the prosecution that bears the onus of proof of all of the essential ingredients of any criminal charge, and to successfully discharge this onus the prosecution must establish these elements to the criminal standard of ‘beyond reasonable doubt’. Thus, in most cases of murder the elements of the offence are that an act of the accused caused the death of the victim, and at the time of doing the act that

caused the death, the accused intended to kill, or to inflict grievous bodily harm upon, the victim.2 When an accused person pleads ‘not guilty’, their defender will generally do all that they can within the constraints of their instructions and professional ethics to demonstrate why the evidence presented in the prosecution case has failed to meet those requirements, and why the jury should be left with a reasonable doubt of the accused’s guilt. This may involve a concerted attack across the whole of the prosecution’s case, to establish that it is weak, inconsistent and unreliable; or it may involve an all-out attack on a single weak spot in the prosecution case, without which the rest of the allegations fall away. There are many combinations in between. The prosecutor’s task is to present the prosecution’s evidence and demonstrate that the entire fabric of the Crown case holds together in such a way that a jury can be satisfied beyond reasonable doubt of the guilt of the accused. The prosecution also has rigid duties of disclosure whereby it must disclose the evidence in its case sufficiently in advance of the hearing, so that the accused knows the case that he or she must meet. The prosecutor must not adopt a ‘win at all costs’ approach, but must present the case with scrupulous fairness and integrity, without appealing to irrelevant matters, emotions or prejudice. The prosecutor’s primary task is to ensure that the accused receives a fair trial. This will become second nature to a seasoned prosecutor, who will learn to measure their approach to questioning and to the presentation of the evidence accordingly, without losing effectiveness or impact. A prosecutor’s task is therefore not unlike the bricklayer’s — the case being made is like a wall, the evidence forms the bricks, and the wall must stand strong and well made, held together with a mortar of credibility, commonsense and logic. The defender’s task, on the other hand, requires pointing out that there are one or more bricks missing, or that the mortar is weak and the wall does not hold together well enough to stand. But where does one begin to acquire the requisite advocacy skills to

competently run a criminal trial, either as a defender or as a prosecutor? Apart from endeavouring to acquire a sound general knowledge of ‘life and the universe in general’ (for curiosity and good general knowledge are extremely important to be an effective advocate) I would offer the following seven strategies whereby the aspiring criminal advocate can do this, in order to prepare himself or herself for crossing the ‘Rubicon’. OBSERVE EXPERIENCED ADVOCATES AT WORK This is not difficult, although it has fallen out of fashion somewhat. The criminal courts are generally open to the public, and the newspapers usually will run stories that indicate that a major trial is running in one of our courts. Why not visit and listen in for a day? In Edwardian times, before radio, television and the movies, court watching was a very popular pastime, and Londoners, New Yorkers and Sydneysiders alike would await jury verdicts in high-profile trials in a fever of anticipation. You can learn a great deal from watching skilled advocates going about their work. It is for good reason that watching and learning from senior advocates during pupillage is a critical component of the Bar Readers’ programs run by the various state Bar Associations. STUDY DETAILED ACCOUNTS OF PAST CRIMINAL TRIALS There are plenty of books about criminal trials. However, most of these have been written with a narrow purpose in mind and are not clear, objective accounts of the proceedings. Many are sensationalised and little better that the ‘penny dreadful’ magazines of Victorian times or their ‘dime novel’ equivalents in the United States. While these may entertain, they do not teach. Instead, try to source and get hold of some of the few really excellent publications that accurately relate the course of a real criminal trial. Outstanding, if you can find them, are the trials documented in the ‘Notable British Trial’3 series — despite their age, these are a wonderful resource from which to learn much about advocacy skills. They generally contain a fine

introductory background to the case, and an accurate account of the evidence taken from the trial transcript. They were written at a time when the public readership still remained enthralled by detailed accounts of what occurred in the course of a famous trial. Penguin Books has published anthologies of the introductory chapters from some of the ‘Notable British Trial’ series, and although they are not always in print, they can be found.4 Included in the series, the trials of Robert Wood (‘The Camden Town Murder’), Dr Crippen (the infamous ‘body in the cellar’ case), Seddon (the poisoner), George Joseph Smith (the ‘Brides in the Bath’ case), Rouse (the ‘Burning Car’ case), Ronald True (involving mental illness), Oscar Slater (a famous ‘mistaken identity’ case), Ley and Smith (the ‘Chalkpit murder’) and many others provide an opportunity for the reader to sense the drama of events, and to see the skills that the advocates deployed in prosecuting and defending these persons caught in the web of criminal proceedings. More recently, Folio Books5 has published an excellent four-volume set of famous trials. You may find other good titles on Amazon.com, but be sure that it is an objective account and not sensationalised — if it contains substantial passages from the trial transcript, then it is likely to offer some helpful lessons. READ BIOGRAPHIES AND SPEECHES OF GREAT ADVOCATES Studying the lives and work of great advocates can be a rich source of knowledge, inspiration and confidence building. To understand the dazzling ups and downs of a career of one such as the Edwardian defender Sir Edward Marshall Hall,6 or the steady rise and sheer forensic talent of the likes of Sir Norman Birkett;7 or to read the closing address of Justice Robert Jackson at Nuremberg8 or Clarence Darrow’s plea for mercy from the death penalty on behalf of his clients Leopold and Loeb9 will bring you to grips with the ‘Real McCoy’ of courtroom advocacy and the realisation that it is possible for competent advocates to rise to any occasion, however complex, nervewracking and dramatically in the public eye the case may be. An excellent and

inspiring read is Geoffrey Robertson’s The Tyrannicide Brief,10 about John Cooke (who prosecuted King Charles I), a book by an outstanding advocate that teaches much about courageous and ethical advocacy in times of great social upheaval. An excellent modern autobiography of a great Australian advocate is Chester Porter’s Walking on Water.11 LEARN HOW TO MASTER AND MARSHAL (THAT IS, ORGANISE AND PRESENT) YOUR MATERIAL This is an indispensible and, sadly, a somewhat underrated skill. Unless you are across your brief you will never rise above a passable performance in the courtroom. Mastery of a brief entails knowing the asserted facts, assessing the quality and reliability of witnesses, identifying the strengths and weaknesses in the case and knowing where the gaps are, and having a clear sense of the theory of the case while remaining flexible enough in your thinking to creatively anticipate and deal with unexpected turns in the evidence as it emerges in the course of testimony. It requires an intimate understanding of the environment in which the alleged crime occurred. A good advocate will always travel to and view the crime scene to gain an understanding of its salient features, and especially to be better able to mentally put himself or herself into the ‘shoes’, and to enter the ‘mind’, of those involved in the event. To do so also requires an appreciation of what else was going on in the background (the ‘context’) of the alleged crime. If the facts are at your fingertips you will more readily pick up (and be able to respond to) inconsistencies and weaknesses in the evidence. You need to come to grips with the science behind any scientific expert evidence in the case, and to ensure that you understand whether it is useful or not, and what weight should be given to this kind of evidence. Marshalling (organising and presenting) is almost as critical a skill as mastery of the brief. It is not much use mastering a brief unless you can present the case properly. Marshalling requires techniques not unlike that employed by a book editor or a story writer — putting the material into a

logical sequence, and presenting it in captivating, manageable ‘chapters’ in the correct order for developing themes and enabling the jury to digest the whole in a manner that is understandable and compelling in its logical force and truthfulness. Here, the order in which you call witnesses can be of utmost importance, and the good advocate should never compromise on this unless absolutely necessary (for example, if a witness is unexpectedly ill and the case cannot be adjourned). Organising yourself is also a part of all this. Your physical brief, however small or large, should be assembled in the same order in which you propose to present the case. In a complicated case you should have two witness lists – one a numerical list showing the order in which you propose to call them and the other an alphabetical list showing where they are in the brief numerically. Having summaries of the evidence, lists of exhibits to be tendered, photographs and charts and other visual aids, and a clear understanding of the law applicable to the case after appropriate reflection and anticipation about the issues in dispute will ensure that you are in a state of readiness that frees up your mind to concentrate on the witnesses and the evidence as it unfolds in the courtroom, and its implications. PRACTICE IMMERSING YOUR MIND IN THE CASE AT HAND, AND REFLECTING DEEPLY ON ALL OF ITS COMPONENTS USING INDUCTION AND DEDUCTION Consider the human motivations and emotions that may be in play; the chronological, geographical and environmental features of the crime; the possibilities and impossibilities — make an effort to ponder oddities and the meaning of inconsistencies This is all part of being an effective advocate. You need to think both inside and outside of the square. Throughout the Milat trial, the prosecution team spent many hours in deep reflection on the many intricate aspects of the case. STUDY THE TECHNIQUES OF GOOD COMMUNICATION AND

STORYTELLING (THE SKILLS THAT MAKE SOME PEOPLE GREAT TO LISTEN TO) A good advocate has the ability to present and explain the evidence in a captivating way, so that the jury remains interested and involved in the unfolding of the case. Most criminal cases, for better or worse, do indeed have all the elements of an intriguing story, and a real life one at that, which makes them all the more interesting if they are well presented. It is important to note here that the advocate is not making anything up (and must not) but, rather, is bringing out the essential fascination that is inherent in any contest of conflicting versions of events. Juries enjoy the mystery and the purposeful nature of the task they have been sworn to perform. Developing this skill of presentation involves honing your timing, pace of delivery and voice modulation. It requires thinking about where emphasis should be given, when to persist with something and when to let something go, and when to repeat and explain and when to let the jurors work out the significance of a point for themselves — a form of involvement and engagement that can be a very effective communicating tool that enables you to carry the jury along with the narrative you are presenting. PRACTICE WHAT YOU LEARN WHERE YOU CAN Your advocacy skills will develop with practice. You may find that there will be opportunities to try various techniques and methods in non-critical matters or when you know it is safe to do so, such as where the outcome will surely be the same regardless of the quality of your advocacy; in such a case you may find opportunities to try a new technique or approach, to experiment a little and to gain confidence with it. Over time, you will find that your skills grow. It is hoped that this book will provide a reading experience that will satisfy the first six of these strategies. It offers an analysis of an entire crossexamination of the accused in a significant major murder trial, by a very

skilled advocate who had mastered the brief, marshalled the evidence expertly and who communicated in a highly effective manner to the jury. As for the seventh strategy, the would-be trial lawyer will need to practice, and eventually to cross their Rubicon alone. SOME BACKGROUND TO THIS CASE STUDY The trial of Ivan Milat took place in the New South Wales Supreme Court in 1996 before the Chief Judge at Common Law, the Hon Justice David Hunt, and a jury, in the old Banco Court in St James’ Road, Sydney. The trial attracted an enormous amount of media coverage and public interest, nationally and internationally. A Crown Prosecutor at the time, I had the privilege of being Mark Tedeschi’s junior counsel throughout the entire trial, and so had close involvement in all aspects of the case, including a seat next to Tedeschi at the bar table and also in the prosecutor’s chambers from which to take part in and follow his entire preparation and presentation of the case. Later in my career I spent some years as Director of the Postgraduate Prosecutions Program at the University of Wollongong, where I taught advocacy in criminal trials. I became aware that while there are innumerable books about cross-examination techniques they invariably rely upon brief extracts of a few questions and answers, usually from famous old trials, that are used (and often repeatedly ‘trotted out’ in books on the subject) to demonstrate the effectiveness of a particular manner of approach in particular situations. While such an approach can certainly be helpful, it is very incomplete and unsatisfying. In my view, a far better way to learn the skills required for effective cross-examination is to study an entire cross-examination from beginning to end, whereby one can see the rising and falling tensions of the moment, to which the cross-examiner must respond, on the run and to the best of his or her ability, with the best line of attack that they can. This will reveal the degree to which the advocate has mastered the brief and marshalled

the evidence, which will be reflected by the adroitness of their response to the ebb and flow of the course of the evidence. One can also see the development of entire lines of questioning and the tenacity and persistence that can be required to see them through to an effective conclusion. Along the way, one also learns almost the entire story of the case, as the cross examining prosecutor must put to the accused any disputed relevant propositions and inferences that the cross-examiner will submit to the jury are established by the evidence, in accordance with well-established rules of fairness exemplified by the case of Browne v Dunn.12 Furthermore, by understanding the narrative or story of the case, particularly if this is illustrated with images of the very exhibits that were tendered in the trial and used by the cross-examiner (as we will do here), the reader can better appreciate the skills deployed by the crossexaminer in his or her approach to questioning, against the factual background and context of the case. It also provides a richer and more satisfying understanding of the case itself. To my knowledge there is no single study of this kind available in Australia, and I expect that the reason for this is that most criminal trial transcripts become forgotten and are archived. Trials with juries are very rarely reported in the law reports, apart from decisions about questions of law and admissibility that may be determined by the trial judge during the course of a trial. If the jury’s verdict is appealed, then the appellate court’s decision may well be reported in the law reports, but it will not contain the entire cross-examination, and will generally only refer to aspects of the trial relevant to the limited points of law argued on appeal. I am very grateful to the New South Wales Department of the Attorney General and Justice for granting permission to use the trial transcript of the cross-examination for this book and this provides a unique opportunity to provide the reader with an unusually ‘up close’ insight into the work of the skilled advocate. The presentation of the book is designed to maximise the learning experience for the reader. The transcript makes for very interesting reading by itself. However, I have added many annotations and footnotes that explain

the background to significant issues, and the technique, strategy and purpose behind the questions. My hope is that this combination will provide the reader with some real insights into the art of cross-examination. The New South Wales Police Force has kindly permitted the reproduction in the book of many of the photographs of exhibits and charts used in the trial itself. These can be found in Appendices 1 and 2 of this book and can be looked at as the reader follows the questioning, and will enable the reader to see what was being shown to the witness at the time, thereby giving an added sense of experiencing the event first-hand. Truly skillful use of exhibits is an art of great finesse, often underestimated. The timing of introducing an exhibit, and its use once admitted into evidence, will often distinguish a tyro from a master. Deciding when and in what manner to show an exhibit to a witness and/or the jury can add significantly to the impact that the exhibit has. In the Milat case, much work had gone into the presentation of exhibits, including the preparation of summary charts and photo books that became critical aids in explaining the prosecution case to the jury. Tedeschi’s use of exhibits in this trial, as the reader will see, was exceptional. The purpose of this book is not to deal with every issue that the Milat trial gave rise to — that would fill several volumes.13 Rather, I have sought to concentrate just on the cross-examination, and the lessons it holds for advocates. A succinct introductory chapter will give the reader the essential background to the case, which will enable them to follow and understand the cross-examination. The annotations will, I hope, serve to expand further on the relevant facts of the case and to illustrate the skills and techniques deployed by the advocate. In combination, I believe that these will tell the story of this important case, and give the reader a richer understanding of the art of advocacy. There are a number of acknowledgments I wish to make. First, my thanks to the New South Wales Department of the Attorney General and Justice, for permission to reproduce the transcript of the cross-examination. Thanks also to the New South Wales Police for permission to reproduce a number of

police photographs used as exhibits in the trial. Particular thanks to Detective Inspector Andrew Waterman, who assisted with access to trial exhibits and provided helpful comments in relation to Chapter 1, and to her Honour Judge Sarah Huggett for her helpful comments on that chapter. I would most especially like to thank Mark Tedeschi AM QC for his insights and suggestions, and for his willingness to have another barrister analyse and comment so closely upon his work; the cross-examination itself, of course, is all his work, and I have merely set myself the task of analysing his approach and technique as an advocate. I also extend my great thanks to Nicholas Cowdery AM QC for his thoughtful Foreword to this book, and for his inspired leadership of the Office of the Director of Public Prosecutions over many years, including the year of Ivan Milat’s trial. Thank you also to LexisNexis Butterworths and for the skill and professionalism of all the people there who have enthusiastically supported this work from its inception. My special thanks go to Commissioning Editors Philippa Huxley, for her encouragement in the early stages of the proposal, and Cassandra Dunne, for her encouragement also, as well as her remarkable organisational and editing skills in bringing the project home. Many thanks to editor Georgia O’Neill, whose skills have greatly enhanced the layout and the quality of the prose. Thanks also to Eleanor O’Connor and Hayley Moore for their very helpful input with the final stages of preparing the manuscript for publication. Dan Howard SC Sydney May 2014

Crown Prosecutors Mark Tedeschi QC (standing) and Dan Howard (the author), with their instructing DPP solicitor Sarah Huggett, in the old Banco Court in St James Road at the time of the Milat trial. (Photo courtesy of Mark Tedeschi and reproduced with kind permission of the Chief Justice of New South Wales.)

1

Author’s note: The legal discussion between counsel and the trial judge that took place from time to time in the absence of the jury has not been reproduced here, as this did not constitute evidence in the case and did not form part of the cross-examination.

2

See Crimes Act 1900 (NSW) s 18. There are other circumstances in which murder may be committed, including where there is reckless indifference to human life, or where the felony/murder rule applies. Omissions by the accused may also give rise to murder if accompanied by the requisite intention.

3

Published between 1905 and 1959 by William Hodge & Co, London, these fine books include titles dealing with the most sensational trials in British criminal law, in an age when courtroom advocates stood upon a very public stage. You may find them in second-hand bookshops and some libraries, or try Amazon.com.

4

See, for example, Famous Trials, a selection by John Mortimer, Penguin Books, 1984; Famous Trials, Penguin Books, vols 1 (1941), 2 (1948), 4 (1954) and 5 (1953).

5

Notable Historical Trials, Folio Society, London, 1999, vols 1, 2, 3 and 4.

6

E Marjoribanks, The Life of Sir Edward Marshall Hall, Victor Gollancz, London, 1929;

Famous Trials of Marshall Hall, Penguin Books, 1950; see also Sir David Napley, The Camden Town Murder, 1987, Trafalgar Square. 7

H Montgomery Hyde, Norman Birkett: The Life of Lord Birkett of Ulverston, Hamish Hamilton, London, 1965.

8

International Military Tribunal, The Trial of German Major War Criminals: Speeches of the Chief Prosecutors, H M Stationery Office, London, 1946.

9

See A Weinberg (ed), Attorney for the Damned, University of Chicago Press, Chicago, 1989, pp 16–88.

10 G Robertson, The Tyrannicide Brief, Chatto and Windus, London, 2005. 11 Chester Porter, Walking on Water — A Life in the Law, Random House, Australia, 2004. 12 (1893) 6 R 67 (HL). 13 There are a number of general accounts of the case. Perhaps the most detailed is M Whittaker and L Kennedy, Sins of the Brother: The Definitive Story of Ivan Milat and the Backpacker Murders, Macmillan, Sydney, 1998. Neil Mercer’s book on the subject, Fate: Inside the Backpacker Murders Investigation, Random House Australia, Milsons Point, 1997, provides a good, concise account. See also R Shears, Highway to Nowhere: The Chilling True Story of the Backpacker Murders, Harper Collins, Sydney, 1996; and R Maynard, Milat: The Full Horror of the Backpacker Murders, Margaret Gee Publishing and Price Publishing, Sydney, 1996. For a recent account of the police investigation see C Small and T Gilling, Milat: Inside Australia’s Biggest Manhunt, Allen & Unwin, Sydney, 2014.

CONTENTS Foreword Publisher’s Note Preface CHAPTER 1 THE BACKGROUND TO THE BACKPACKER MURDERS TRIAL CHAPTER 2 DAY ONE OF CROSS-EXAMINATION 18 JUNE 1996 CHAPTER 3 DAY TWO OF CROSS-EXAMINATION 19 JUNE 1996 CHAPTER 4 DAY THREE OF CROSS-EXAMINATION 20 JUNE 1996 CHAPTER 5 CONCLUDING REMARKS Appendix 1 TRIAL EXHIBIT PHOTOGRAPHS Appendix 2 TRIAL EXHIBIT DIAGRAMS

Index

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CHAPTER 1 THE BACKGROUND TO THE BACKPACKER MURDERS TRIAL INTRODUCTION 1.1 The Belanglo State Forest, south of Berrima in the Southern Highlands of New South Wales, comprises some 3800 hectares of planted pines mixed with ghost gums and other eucalypts and a good deal of scrubby bush. This is interlaced by a bewildering number of sandy fire trails that wind their way through the drab landscape of mostly low ridges and shallow valleys. It is difficult to get far into the forest without a four-wheel drive vehicle. To passing traffic on the Hume Highway, the forest appears in the middle distance to the west as a somewhat dark and gloomy woodland rise. It is an unspectacular, lonely place with no particular features of interest to tourists, although trail bikers sometimes ride there. It would be easy to become lost in the forest due to its featureless sameness. It is, all in all, a rather unremarkable place, but it lays claim to a chilling notoriety that remains etched on the collective consciousness of Australians; for here, between December 1989 and April 1992, Ivan Milat committed a series of seven terrible murders that collectively became known as the ‘Backpacker Murders’. A serial killer is a mercifully rare phenomenon, whose repetitive modus operandi presents investigators with distinct behaviour and evidence trails that gradually reveal patterns or ‘signatures’ that, once understood, enable investigators to greatly sharpen the focus of their efforts, and prosecutors to make crucial connections between apparently distinct events. In combination, these elements can powerfully establish the killer’s guilt, as the evidence

relevant to each separate incident in the series can become evidence relevant to all the others. However, it frequently takes time for the pieces of the puzzle to fall into place and for a clear picture to emerge. DISCOVERY OF THE BODIES 1.2 The first piece of what proved to be a very large and complex puzzle was a gruesome discovery made on a spring day in September 1992, by two orienteers. While participating in an event in the forest, organised by the ‘Scrub Runners’ club, they passed a boulder near the Long Acre fire trail, and noticed a pungent stench. Tucked up against the boulder they found a badly decomposed female corpse. They quickly reported their discovery to police, and the following day a team of officers came to the spot and, while searching the surrounding area for clues, found a second body of a female, also badly decomposed, hard up against a fallen log some 30 m from the boulder. Both of the bodies had been covered [page 2] with leaf litter and small vegetation from the forest, over which had been placed a layer of tree branches. The bodies proved to be those of Joanne Walters (aged 22) from Wales, and Caroline Clarke (aged 21), an Englishwoman, who had met in Australia and had been backpacking around Australia together. They had been missing since 18 April 1992. Post mortems were carried out on the bodies. Walters had been stabbed a total of fourteen times in her neck and back, most probably with a large knife. The tip of one vertebra in her spine and some of her ribs had been cut completely through. She had clearly been attacked with much ferocity. Her mouth had been gagged with a piece of cloth rag tied around her head, and about her neck and chin there was a ligature of similar rag which had, by the time her body was found, separated

into two pieces. The pieces of rag had been part of a business shirt, and one of the rags, part of the shirt’s collar, still had the label showing that it was a Gloweave brand, size 41. In addition, all but the top button of Walter’s jeans, still on her body, were undone and no underpants were found. Her t-shirt and bra were found pulled up, exposing her breasts. A few strands of hair were found in her right hand.1 Caroline Clarke had been stabbed once in the back by a similar knife to that used upon Walters. However, unlike Walters, Clarke had also been shot. There were 10 bullet entry wounds to her head, and the bullets were all recovered from her head or the soil underneath. Each of the bullets had marks that were consistent with a silencer having been used. They were all .22 calibre, and 10 corresponding .22 calibre brass cartridge cases, no doubt ejected from the firearm, were found in the immediate vicinity of Clarke’s body. Ballistic analysis established that each of the 10 cartridge cases had the same distinctive tool marking that had been etched in the brass by the same firing pin, indicating that the one gun had fired all 10 shots.2 A sweatshirt had been wrapped around Clarke’s head, and tests revealed there was gunpowder residue on it, indicating that the shots had been fired [page 3] at close range. The front clip of her bra was undone and the bra front was skewed to the side. Neither Walters nor Clarke appeared to have any ‘defensive’-type wounds indicative of fending off an attack, which are often found on the bodies of homicide victims. The absence of such wounds suggested that neither had any opportunity to defend themselves from their attacker. The police treated the deaths of Walters and Clarke as a double murder, and a small number of detectives were working on the investigation. However, that all changed after 5 October 1993, when a fossicker, who was

collecting firewood in the forest, came upon a human thigh bone near the upper Long Acre fire trail in the Belanglo State Forest. Looking further, he found nearby a human skull and a number of other bones. He alerted police, who conducted a search in the area and located further remains from the same body as the skull located by the fossicker. They also located a second body about 25 m away. DNA testing established that the first set of remains belonged to Deborah Everist, a Victorian woman aged 19 years. The other body was that of her travelling companion, James Gibson, also aged 19 years and from Victoria. Each of the bodies had been placed at the base of a separate tree and covered with forest debris and large sticks, in a manner similar to Clarke and Walters. Everist and Gibson had last been seen alive on 30 December 1989, when they were setting out to hitchhike south from Surry Hills in Sydney to an environmental festival known as ‘Confest’ in Albury, near the Victorian Border. Curiously, on 31 December 1989 a camera, and on 13th March 1990 a backpack, both belonging to Gibson, had been found by the side of the road winding through Galston Gorge in Sydney’s north, and nowhere near the Belanglo State Forest. At that time, police had searched the gorge for further clues, without success. Everist’s body was skeletal when found, and some of the bones had been dispersed, almost certainly by animals in the forest. A piece of cloth, heavily weathered from exposure but consistent with having been used as a gag, was found near her body. Nearby, police also located a black bra that had numerous cuts to the straps and cups consistent with stabbing; they also located a pair of black underpants of a style that matched the bra, which also had cuts consistent with stabbing. Police also located near the body a pair of black pantyhose, the lower part of each leg of which had been tied in a slipknot forming loops that would have enabled it to be used as a restraint. Post mortem examination revealed that Everist had suffered six blunt force and penetrating injuries to her head. Her jaw had also been fractured. One of her lower left ribs had been cut, consistent with a stab wound caused by a

knife entering her chest cavity and penetrating her lung and probably her heart or aorta. She had died of multiple stab wounds and blows. [page 4] Most of the stab wounds were consistent with being caused by a knife with a blade 20–30 mm wide. Like Everist, Gibson’s bones indicated that he had been stabbed numerous times, with damage to the ribs and spine. One particularly severe knife blow from behind had cut through three vertebrae of Gibson’s back. Two of the knife wounds had penetrated his sternum and would have also penetrated his heart or major blood vessels. The zipper of Gibson’s jeans was undone, but the top button was fastened. It was now clear to the New South Wales Police Force that a serial killer had probably been at work, and that there might be more bodies of missing persons in the forest. Within a week, on 12 October 1993, the police established Task Force Air, under the command of Superintendent Clive Small, which mounted a huge and, in time, spectacularly successful investigation. It was certainly known that other young foreign nationals who had been hitchhiking their way around Australia were listed as missing persons. After a painstaking search of the forest by vast picket lines of dedicated police officers two more crime scenes were located. The skeletal remains of Simone Schmidl were found on 1 November 1993, some 30 m into the bush off the Tree Cave fire trail in the Belanglo State Forest. A 21-year-old finance student from Germany, Schmidl was last seen alive on 20 January 1991 after setting out from Sydney, with a backpack, to hitchhike her way to Melbourne where she had planned to meet up with her mother for a campervan holiday. Schmidl’s remains were also covered with forest debris, with sticks and a large tree branch placed on top. A piece of cloth, now deteriorated, was tied

around her mouth. Her bra, undershirt and vest had been rolled up toward her neck and shoulders. There were cuts to the undershirt and vest consistent with stabbing. The cord of her shorts was undone and there were nine cuts in the seam of the shorts. Post mortem examination revealed two injuries to her spine and six injuries to her ribs consistent with multiple stab wounds, most of which were consistent with having been caused by a knife with a blade 20– 30 mm wide. Around Schmidl’s head was tied an elasticised Compact-o-mat brand strap, of the type used for tying sleeping mats or other camping gear. Schmidl had two such straps in her camping kit when she had left Germany. On 4 November 1993, within the forest but some 2 km from Schmidl’s remains, the police located the bodies of two German students from Munich, Anja Habschied, aged 20, and Gabor Neugebauer, aged 21. Their bodies were located close to another fire trail and some 50 m apart. A further 165 m away was an area that police described as ‘Area A’, in which a considerable amount of evidence was located, suggesting that much activity leading up to Habschied’s and Neugebauer’s murders had taken place there. [page 5] Anja Habschied’s body was in skeletal condition and was covered with forest debris, sticks and a large branch. Her head was never found and the post mortem established that she had been decapitated at the neck by a heavy cutting implement such as a sword or machete. According to the evidence of the pathologist, Dr Bradhurst, the injury was consistent with her head having been bowed at the time it was cut. He stated in evidence at the trial: ‘[W]hat immediately comes to mind is the style of ceremonial execution’. Habschied’s halter top was torn and ripped, and her bra strap had a cut consistent with stabbing. There was no clothing on her lower body. Her pink jeans, found nearby, had a broken zipper and with the jeans was found a piece of pinkcoloured cloth, the ends of which had been tied together by a knot so as to

form a wrist-sized loop. Next to the jeans was located a distinct rope with blue and yellow strands intertwined, of the kind used by Telecom Australia, and some 4.5 m long. It had been tied to form a loop, consistent with use as a restraint device. Gabor Neugebauer’s nearly skeletal remains were also covered with debris and sticks, and a large log. There was a cloth gag inside his mouth and another piece of cloth had been tied around his face and tied at the back. His hyoid bone had been fractured — often a sign of strangulation — and he had been shot six times to the head. Five of the bullets were recovered and three of these were .22 calibre; the other two were too damaged to identify what calibre they were. Also found was what appeared to be an improvised ‘leash’ or restraining device, comprised of a plastic electrical tie, sash cord and black electrical tape.3 In Area A the police found 46 Eley brand .22 calibre brass cartridge cases and a further 47 Winchester brand .22 calibre brass cartridge cases. Two trees in the area had bullet fragments in them, as if they had been used for target practice. Also found there were two empty cardboard .22 calibre ammunition boxes, one of Eley brand and the other of Winchester brand. Of great significance, ballistics examination confirmed that the 47 Winchester cartridge cases had been fired from the same weapon as had been used to kill Caroline Clarke. The Eley ammunition had been fired by a different gun, later established to be the Anschutz rifle found during a police search among property of Ivan Milat, in the alcove under his brother Walter Milat’s home: see Photo 22. A number of personal items belonging to Neugebauer or Habschied were located on the ground between where their bodies were located and Area A, including a money belt, a broken neck chain, a brown leather sandal and a broken strap. [page 6]

PAUL ONIONS 1.3 In November 1993 the New South Wales Government offered a $500,000 reward, the highest ever offered by the state up to that time, for information leading to the conviction of the killer. Task Force Air established an information line that received thousands of phone calls and items of information, and meaningful leads were entered into a computer program in an effort to find patterns and connections. Still the identity of the killer remained unknown, although in among the vast amount of data and information that the police were gathering were items that would, in time, give significant hints that would lead to Ivan Milat becoming a serious suspect. However, there was nothing conclusive at this stage. There was considerable media coverage of the finding of the ‘bodies in the forest’, including in overseas newspapers. One article in the British press caught the eye of an Englishman, Paul Onions, who was struck by the similarities of what had happened to him three years previously on 25 January 1990 when, as a 24-year-old, he was backpacking around Australia and was detained at gunpoint near Bowral by a man who had given him a lift in a four-wheel drive vehicle. This had occurred on the Hume Highway about 1 km from the turnoff into the Belanglo State Forest. Onions made contact with Task Force Air through the High Commission in London on 13 November 1993 and provided them with some information about the incident, including the fact that he had immediately reported the matter to the Bowral police on 25 January 1990. Officers from Task Force Air then confirmed with Bowral Police that, indeed, Paul Onions had reported the incident that very day to the Constable on duty at Bowral, who had at the time typed up an ‘occurrence pad’ entry and also made a notebook entry containing the details Onions reported. These were now made available to Task Force Air and this information, that had been effectively filed away as an unsolved matter, was now seen in a completely new light, as a critical lead to the identity of the backpacker murderer. According to the information provided by the notebook entry and

the occurrence pad, Onions had described in some detail what had happened, and gave a description of his attacker. This included that his name was ‘Bill’ (a nickname used by Ivan Milat); he had a dark complexion, a moustache like Merv Hughes (Hughes is a famous Australian fast bowler who was in test cricket at the time, who sported a long, bushy moustache that drooped in a pronounced fashion down his cheeks and past either side of his chin), black hair, a solid build, was six feet tall and aged in his mid-thirties; he wore sunglasses; he said that his parents were Yugoslav, that he was divorced and that he worked for the Roads and Traffic Authority (RTA) at Liverpool; he drove a white or silver Nissan or Toyota four-wheel drive vehicle (Ivan Milat’s vehicle was a predominantly silver Nissan Patrol four-wheel drive); and he [page 7] used a loaded revolver with a four-inch barrel (evidence later adduced at the trial suggested that Ivan Milat had owned a revolver). In fact, Milat had dark hair (with some flecks of grey), a complexion that could fairly be considered dark, and was solidly built and fit. He also wore a moustache that resembled a ‘Merv Hughes’ type of moustache, although not as bushy and swept back, perhaps looking more like a drooping, ‘Mexican’ style of moustache. He worked for the RTA, his father was Yugoslav, and he was divorced. The accumulation of details in Onion’s description, as recorded in the occurrence pad entry and the police constable’s notebook, can reasonably be said to have fitted Ivan Milat, with the main differences being that Milat was 45 years old at the time and was not 6 ft tall but just under 5 ft 7.5 in tall. Onions was brought to Australia where he made a statement to police on 5 May 1994, and he was shown a video containing an array of 13 individual still photographs of the faces of different persons, from which he picked the image of Ivan Milat as the person who had detained him for advantage, at gunpoint.

The entire procedure was videotaped. Onion’s statement provided more details about the incident and his attacker, and his evidence at the trial was to the following effect. Onions told the court that his attacker was an Australian with a dark complexion. He was strong looking and mid-30s to 40 years old but appeared older when he lost control. He had a ‘Merv Hughes’-type moustache but thinner and flecked with grey at the bottom near the chin area, the side levers flecked with grey. The attacker spoke with an Australian accent, was dark haired, squinty eyed and right handed, had a strong mouth with teeth that slightly protruded from his lips, had a ‘stupid grin’, appeared tall — 6 ft at most, and wore a t-shirt, shorts and thongs. Onions told the court that he had been on a working holiday in Australia. He had caught a train from Glebe to Liverpool carrying his rucksack, intending to hitchhike to Mildura in the hope of finding work fruit picking. He walked for about an hour to the Hume Highway, and stopped at Lombardo’s Shopping Centre at Casula and bought a drink at the newsagency there. As he left the shop, he was approached by a man who asked him if he needed a lift. The man pointed out his four-wheel drive vehicle, and Onions waited beside it while the man went into the newsagency and then returned to the vehicle. He placed Onion’s rucksack on the back seat and they both got into the car, with Onions in the front passenger seat. The man then proceeded to drive south along the Hume Highway. There was general conversation in the car, and the car radio was playing. The man introduced himself as ‘Bill’ and said that he worked on the roads and was on holiday and travelling to Canberra. He also mentioned that he lived in the Liverpool area, was divorced and was of Yugoslavian extraction. Bill asked a few questions of Onions that, in retrospect, were ominous. [page 8]

He asked Onions whether he had any family in Australia. Onions responded that he was from Birmingham and did not have any family or friends in Australia, and he was travelling alone around the country. Bill asked Onions what he did for a living, and Onions told him he was an air-conditioning engineer and had recently finished a period of service in the navy. Bill oddly also asked whether Onions had served in the Special Forces, or served time in Northern Ireland and Onions told him he had not. As events proved, Bill was clearly sizing up whether or not Onions was a suitable person to abduct, checking if he was vulnerable and without local connections — someone who would not soon be missed if he were to go missing. According to Onions’ account, after about 30 minutes of this kind of conversation Bill’s attitude changed and he started to espouse anti-Asian views, and voiced his objections to the British presence in Northern Ireland. Onions now became nervous and began to look more closely at Bill. He noticed that he was constantly looking in the rear vision mirror and then, approximately 900 m from the turnoff to the Belanglo State Forest, Bill slowed the car and brought it to a stop. He told Onions that they were in a spot where the car radio reception would soon get weak, and that he wanted to get out a cassette for the tape recorder. Bill opened his driver’s door and got out, then reached under the driver’s seat, apparently searching for a cassette. Onions was puzzled, as the radio reception seemed clear enough, and there were cassettes plainly visible on the console between the seats. Onions, feeling a little uneasy, undid his seatbelt, opened his passenger side door and stepped out of the car. Bill asked him why he was getting out of the car, and seemed agitated. Onions got back in, while Bill continued to rummage under the driver’s seat. Suddenly, instead of a cassette, Bill produced from under the driver’s seat a dark coloured revolver and pointed it directly at Onions. ‘This is a robbery!’ he said. Obviously greatly alarmed by the revolver, Onions observed that it was loaded with copper tipped bullets that he could see in the chambers of the revolver pointing directly at him,4 and then he noticed, protruding from under the driver’s seat, a bag containing what he later

described as ‘dirty ropes’.5 On seeing these, Onions realised the incredible danger he was in, and leapt out of the car, running as fast as he could away from the car. Instinctively remembering his navy training, Onions ran from side to side in a zigzag pattern, while Bill chased after him, shouting ‘Stop or I’ll shoot!’. Onions had nowhere to run but across the freeway — at least there were cars passing there, albeit at dangerously high speed — and he was narrowly missed by several cars that had to swerve to avoid colliding with him. A shot rang out behind [page 9] him. Onions ran on to the median strip, where Bill caught up with him and grabbed the back of his t-shirt, causing it to tear, and bringing Onions to the ground. There they struggled, and somehow Onions managed to break free. Completely desperate now, he ran straight toward an on-coming van in the south-bound lane of the freeway, expecting that it would either stop for him or that he would be run over and killed. To his great relief the van braked and came to a stop a short distance away without hitting him. Onions opened the sliding door of the van, yelling, ‘Please stop! He’s got a gun!’, and jumped inside. The driver of the van was a Mrs Berry, who was on her way to Canberra with her young children. She had noticed the two men ahead of her as she was driving south, and observed Onions running away from the other man. After stopping to avoid hitting Onions, who then entered her van, with immense composure Mrs Berry reversed the van, did a u-turn across the median strip and headed back along the north-bound lane of the freeway. While reversing the van, Mrs Berry had observed the other man walking back toward a small, silver Nissan four-wheel drive that had a crimson stripe down the side. Mrs Berry drove Onions directly to the Bowral Police Station, where he

gave to the constable on duty an account of what had happened, including his description of ‘Bill’ and his four-wheel drive vehicle. The constable duly recorded this information on an occurrence pad kept at the station. Onions also told the constable that he had had no choice but to leave his own haversack, with its contents, in the back of his assailant’s vehicle. Most unfortunately, the occurrence pad entry was filed away without being properly followed up by detectives. Onions, who was travelling alone around Australia, moved on, and the information he had provided, which would almost certainly have led the police to Ivan Milat, was not acted upon. One of the tragedies of the case is that if Onions’ complaint had been followed up the subsequent murders of five more victims would not have occurred. The accuracy of Onion’s identification was fully canvassed and tested in the trial and was the subject of careful and detailed directions by the trial judge. The jury clearly accepted that the person described by Onions was Ivan Milat. TASK FORCE AIR GATHERS FURTHER EVIDENCE 1.4 It appeared to Task Force Air that Onions’ attacker and the serial killer responsible for the bodies in the Belanglo State Forest were one and the same person. Now they had a prime suspect in Ivan Milat, whom Onions had identified as his attacker in the photo array he had been shown by police. This major breakthrough enabled Task Force Air to progress the investigation by leaps and bounds. [page 10] Investigating police were aware that the Milat family was an extended and generally close one, and police had obtained a significant amount of background information about the family from various persons. They had also received some advice about the likely profile and characteristics of the serial killer they were after — a forensic psychiatrist had suggested that the

killer was very likely to have kept some of the property of the victims as trophies or souvenirs. Investigating police were also aware that it was possible that the killer may not have acted alone. The fact that a number of the victims had been abducted in pairs raised the question of how much difficulty one man, acting alone, might have had in abducting them. There was also the disquieting extent of activity that had clearly taken place in Area A at the Neugebauer/Habschied site in the forest, where two distinct firearms had been extensively used, as well as a sharp implement, possibly a sword or machete, that pathologist Dr Bradhurst thought may have been employed to decapitate Ms Habschied in a ceremonial style of execution. On 21 May 1994 police went to the home of Ivan Milat’s brother, Alex Milat, in Queensland where Alex resided with his wife, Joan. Alex had previously, on 18 October 1993, provided police with an unusual statement about an incident he alleged he had witnessed on 26 April 1992 (which was eight days after the disappearance of Clarke and Walters). He said that he and a friend had just left the Bowral Pistol Club and were driving on Belanglo Road toward the Hume Highway when he had seen two vehicles with a number of male passengers being driven on Belanglo Road heading toward the forest. He stated that he had seen a gagged female in each car and a shotgun in the possession of one of the passengers in the lead car. The police were uncertain what to make of this statement. Was Alex Milat in possession of significant knowledge? Was he hinting at something? Was he setting up a wrong trail for police to follow? On this visit by police to Alex’s home in Queensland, Joan handed to police a Salewa brand multi-coloured backpack which she told police Ivan Milat had given to her sometime after April 1992. She stated that at the time he gave it to her, Ivan had told her that a friend of his, who was returning to New Zealand, had given it to him as they no longer needed it. The police were quickly able to establish, by comparing the complex material pattern on the backpack with a photograph in their possession provided to them, that this was the backpack that Simone Schmidl had with her when she disappeared.6

Ivan Milat would assert at the trial that he had seen this backpack in the garage at his mother’s home in Guildford, and that his brother Richard Milat had told him that it had belonged to Graham Pittaway (an acquaintance of Ivan Milat) or Pittaway’s girlfriend and now belonged to no-one, so that it was up for grabs. Richard Milat, when later questioned, did not recall [page 11] any such conversation, and there was no evidence the backpack had been through the hands of Pittaway or his girlfriend. Task Force Air’s Commander, Superintendent Clive Small, must by this point have considered that the task force was now in possession of compelling evidence, and promptly determined that the best way forward with the investigation would be to obtain warrants and simultaneously conduct searches, not only of Ivan Milat’s home at Eagle Vale but also of the properties of various members of the Milat family, in the hope of finding relevant items of evidence. Accordingly, early on the morning of 22 May 1994 police units swooped on and searched Ivan Milat’s home at Eagle Vale, his brother Walter Milat’s home at Hilltop,7 his brother Richard Milat’s home, also at Hilltop, his mother’s home at Guildford, and an acreage at Wombeyan Caves jointly owned by Walter and Richard, where some family members, including Ivan, went on occasion for shooting and camping trips. Police also attended and searched a property at Buxton owned by Alex Milat. The items that were found that day provided a treasure trove of evidence that overwhelmingly implicated Ivan Milat in the murders. It will assist in following the cross-examination of Ivan Milat at his trial to set out briefly here the more significant items that police located at the various properties. IVAN MILAT’S HOUSE AT EAGLE VALE

1.5 Prior to entering the Eagle Vale premises, a member of Task Force Air who was a trained negotiator telephoned Ivan Milat at 6.36 am to advise that there were police around his premises, they had a warrant to search the premises in relation to an armed holdup matter (the Onions matter) and he was to come out with his arms extended. Milat initially responded that he thought it was a joke from someone at work and didn’t come out. In the meantime, a constable posted outside heard noises coming from Milat’s garage and twice heard what sounded like a car door opening and closing. More than 12 minutes elapsed before Milat and his girlfriend, Chalinder Hughes, appeared. After the house was secured, Milat was taken back inside by two task force detectives, while the search was carried out of the four bedroom premises.8 Hidden inside a wall cavity, to which access could only be gained from the roof space via a manhole in the garage, police located a white plastic bag containing a Ruger trigger assembly, bolt assembly, spring and guide, ‘Ramline’ magazine and two pieces of cloth from a shirt.9 With the bag was also found a 10-shot Ruger rotary box magazine. [page 12] In bedroom 3, police located a number of .22 calibre cartridges of Eley brand ammunition with an ‘E’ head stamp10 and Winchester Brand ammunition with an ‘H’ head stamp. The Winchester ammunition was consistent with that found at the Clarke murder scene. Also found was an amount of New Zealand and Indonesian bank notes. Whereas Milat had not been out of Australia in the relevant period, Schmidl had travelled in New Zealand and Neugebauer and Habschied had travelled in Indonesia, before coming to Australia. There was a postcard from a friend of Ivan Milat, addressing him as ‘Bill’, and there was a roll of black electrical tape. In bedroom 4, police found a camouflage-painted Bowie knife,11 boxes of

Eley brand ammunition, a broken barrel band12 from a Ruger 10/22 rifle, a Ruger 10/22 instruction manual, a receipt for a Winchester shot gun in the name of Norman Chong, various firearm parts including grip plates fro a Colt revolver, Winchester and other makes of ammunition of .45, .38 (copper tipped) and .32 calibre, enamel model hobby paints including one indistinguishable from one of the camouflage colours on the Ruger trigger mechanism found in the wall cavity, a green plastic water bottle with the name ‘Simi’ (which was Simone Schmidl’s nickname) written on it in two places,13 a paintball mask painted in camouflage colours14 and other items. In bedroom 1 were found various photo albums, a Salewa brand sleeping bag (in respect of which Ivan Milat admitted, for the purpose of the trial, that the only reasonable inference to be drawn was that this had been in the possession of Schmidl at or immediately before her death)15 and a green sleeping bag identified as belonging to Deborah Everist by her brother.16 In the garage were found a number of items in respect of which Ivan Milat admitted, for the purpose of the trial, that the only reasonable inference to be drawn was they had been in the possession of Schmidl at or immediately before her death. These included a Salewa sleeping bag cover, a Vau de [page 13] Hogan brand tent,17 a green tent peg bag and pegs, a green bag containing an aluminium tent frame and an elasticised Compact-o-Mat brand compression band for strapping camping gear.18 Also found in the garage were a homemade silencer,19 a variety of .45 calibre ammunition suitable for use in a pistol or revolver, a roll of black electrical tape, 12 black plastic cable ties of the same type and manufacture as the cable tie used in the ‘leash device’ found at the Neugebauer/Habschied scene, a green and white striped pillow case containing five lengths of sash cord indistinguishable from that used in the ‘leash device’, one of which had blood on it20 that DNA testing established

to have a profile consistent with coming from a child of Caroline Clarke’s parents, a butt plate21 suitable for a Ruger 10/22 rifle, and a large bag containing a quantity of rags. In the hall cupboard, inside a pair of HY Test brand work boots, was a Ruger receiver,22 serial number 120-15357, with camouflage paint on it matching that on the Ruger parts found in the wall cavity. This receiver was proven to have been part of a Ruger 10/22 sold second-hand by a man named Komarek to the Horsley Park Gun Shop in early 1988. When Komarek had sold the gun it had no camouflage paint on it. Ivan Milat admitted at trial that he frequented the gun shop and had purchased guns there using a shooter’s licence in the name of Norman Chong, a licence that Walter Milat claimed to have found and to have occasionally loaned to Ivan Milat. Ivan Milat denied ever purchasing the Ruger 10/22 previously owned by Komarek or, indeed, any other Ruger 10/22, although Walter Milat gave evidence that Ivan Milat had owned a Ruger 10/22 rifle that Walter had wanted to purchase from him. Also found in the hall cupboard was a map of the Southern Highlands including the Belanglo State Forest. Under the washing machine in the laundry was found a Browning .32 calibre pistol, with a pouch, ammunition and magazine.23 Ivan Milat’s former wife identified the pistol as his gun that he used to keep at times under the driver’s seat of his car. In the kitchen was found an Olympus ‘Trip’ 35 mm camera that was identical to one owned by Caroline Clarke.24 The serial number established that the camera had been shipped from the factory in Malaysia to England, for sale, about 14 months before Clarke left the United Kingdom for [page 14] Australia. Also found, in the kitchen pantry, was a portable camp cooking set that was identified as Schmidl’s.25 On the kitchen bench was found a radio

scanner belonging to Ivan Milat, painted camouflage — when examined by police it was found to be tuned to the police frequency. In the family room, police found a manual entitled Select Fire 10/22 with Ivan Milat’s fingerprint on it — this was a manual for converting a Ruger 10/22 rifle into a fully automatic weapon.26 Police also located a photo album containing a photograph of Chalinder Hughes wearing a green and white coloured Benetton brand shirt identical to one owned by Caroline Clarke, which Chalinder (who was called by the defence) claimed to have taken from the laundry at the Eagle Vale premises and worn that day only, assuming that it belonged to Ivan Milat’s sister Shirley (who also resided in the home at Eagle Vale for a time). However, evidence in the prosecution case established that the laundry at the Eagle Vale premises had not yet been built as at the date written on the back of the photo by Ivan Milat. There were also photographs of Ivan Milat inside the Eagle Vale house dressed as a cowboy holding a Winchester 30/30 repeating rifle, with a packet of Winchester 30/30 cartridges. In the garage was a red Holden Jackaroo four-wheel drive vehicle27 (this vehicle had replaced Ivan Milat’s Nissan Patrol). In the car were packets of .22 calibre ammunition. In the console between the driver’s and front passenger’s seats was a 1989 English 20-pence coin,28 some cartridge adaptors for a revolver29 and a threaded barrel cap30 that was suitable for use on the Anschutz rifle31 found among Ivan Milat’s property in the alcove at Walter Milat’s home at Hilltop. There was also found in the car console a green rubber surgical glove.32 WALTER MILAT’S PROPERTY AT HILLTOP 1.6 There was evidence that Ivan Milat had, in about March 1994, arranged for a substantial number of items, including firearms and ammunition, to be moved from Eagle Vale to an alcove under Walter Milat’s house in Hilltop. Walter Milat stated that the property found in the alcove of his home had

been brought there for storage from Eagle Vale at Ivan’s request, and that he and their brother Richard had helped Ivan to move it there. [page 15] In the alcove was found a High Sierra brand day pack33 in respect of which Ivan Milat admitted, for the purpose of the trial, that the only reasonable inference to be drawn was that it had been in the possession of Schmidl at or immediately before her death. Also found were an Anschutz .22 repeating rifle with a threaded barrel and cap and an Anschutz breech bolt consistent for use with the rifle.34 The bolt was wrapped in a piece of flannelette shirt cloth (cloth indistinguishable from a piece of shirt cloth found in a model airplane box in bedroom 4 at the Eagle Vale premises)35 inside a haversack that had the name ‘Ivan’ written on the inside flap. The Anschutz rifle was wrapped up in a blanket together with a Winchester 30/30 repeating rifle identical to the one seen in the photograph of Ivan Milat dressed as a cowboy.36 Ivan Milat did not dispute at the trial that Neugebauer had been shot by someone with the Anschutz rifle. However, he claimed that although he had bought the gun while he had been living at Guildford he had sold it to his brother Walter Milat for $150 and thereafter only saw it occasionally. Walter Milat denied this, saying he could not afford to buy it, although he had at times borrowed it from Ivan Milat, sometimes for months at a time, and used it on shooting trips, possibly in the Belanglo State Forest. There was also found in the alcove some Winchester Winner brand .22 calibre ammunition with a batch number ACDICF2 on the box.37 This was the same as the batch number on the empty box of Winchester ammunition found at Area A at the Neugebauer/Habschied murder scene.38 There was also found a complete and unused Ruger 10/22 rifle in a box;39 it had been purchased from the Horsley Park Gun Shop on 4th April 1992 using a

shooter’s licence in the name of Graham Pittaway. Pittaway was a friend of Ivan Milat who was in New Zealand on the date of the purchase. It was the instruction manual for this rifle that was found in the family room at Eagle Vale, and the date ‘4492’ had been written on it in Ivan Milat’s hand.40 At the trial, Walter Milat claimed that he had purchased this gun using Pittaway’s licence, with money provided by Ivan Milat, and that he had left it at Ivan’s home a few days after its purchase. Also found in the alcove were 12 packets of Eley .22 calibre ammunition, batch number J23CGA. Ammunition with this same batch number was also found in bedroom 4 at [page 16] the Eagle Vale premises. In Area A at the Neugebauer/Habschied site had been found an Eley ammunition box with a batch number that could be read in all but one of the characters (which had faded from weathering) — the number on that box was J2(3 or 6)CGA. There was also found some Winchester subsonic .22 calibre ammunition with a ‘W’ head stamp consistent with the empty cartridge cases found in Area A. In a wooden box painted camouflage colours, the police found a .44 calibre black powder revolver and black powder,41 which Ivan Milat admitted was his. There was also an SKK rifle painted in camouflage colours that Ivan Milat admitted was his and that he had painted it. RICHARD MILAT’S PROPERTY AT HILLTOP 1.7 In a shed at Richard Milat’s Hilltop property was a louvre door cupboard that, according to Richard Milat and his friend Elizabeth Smith, contained property that had been taken from a cupboard at the Milats’ Guildford home, as their mother had been considering selling the house. According to Richard Milat, his mother had told him he could take what he wanted from the cupboard at Guildford. Ivan Milat denied having had anything to do with any

of this property. Inside the louvre door cupboard police located Joanne Walters’ Caribee brand sleeping bag,42 in relation to which, for the purposes of the trial, Ivan Milat made an admission that the only reasonable inference was that this had been in Walters’ possession at or immediately before the time of her death. Also found was a blue three-person tent and poles that the prosecution alleged were Caroline Clarke’s,43 in respect of which Ivan Milat made a similar admission for the purposes of the trial, although Richard Milat maintained that the tent and poles were Richard’s own. Also located there was a Karrimat brand sleeping mat44 and an orange Ultimate brand sleeping bag,45 in relation to each of which Ivan Milat, for the purpose of the trial, admitted that the only reasonable inference was that they had been in Clarke’s possession at or immediately before the time her death. Also found at Richard Milat’s property, in the boot of his vehicle, was a length of blue and yellow braided ‘Telecom’ rope of the same kind as the one found in ‘Area A’.46 According to Ivan Milat’s former wife Karen, Ivan Milat used to have such a rope to secure things to his trailer. Richard Milat also admitted to having rope of this type. [page 17] MARGARET MILAT’S HOME AT GUILDFORD 1.8 Ivan Milat had lived at this address between 1987 and 1993, prior to moving to Eagle Vale. In the garage at Guildford, police found a light denim Next brand shirt in a box on the floor.47 It was found beside a blue checked KMart brand shirt that Ivan Milat admitted in evidence belonged to him. Evidence established that the Next brand shirt had been sold exclusively in England, last selling in the 1986 season. Paul Onions identified this as one of his shirts that had been in his backpack when he had left it in ‘Bill’s’ car, although it was dirtier now and had some red stitching along the length of the

collar that had not been there when it was manufactured or in Onion’s possession. Also in the garage, on a workbench, was a yellow t-shirt that the evidence established had been exclusively sold by Hallenstein Brothers in Christchurch, New Zealand.48 The prosecution case was that this t-shirt had been purchased by Schmidl from Hallenstein Brothers on 20 December 1990. In a bedroom belonging to David Milat, another brother of Ivan, was found a cavalry sword. Ivan Milat denied ever owning this item. In a grey metal locker49 were located a Lithgow Slazenger Hornet .22 calibre rifle engraved with the name ‘Ivan’ and a .22 calibre JW15 Clayco rifle with a threaded barrel. Ivan Milat admitted that the locker and its contents belonged to him. THE WOMBEYAN CAVES PROPERTY OF WALTER AND RICHARD MILAT AND THE BUXTON PROPERTY OF ALEX MILAT 1.9 It was part of the prosecution case that Ivan Milat had attended these two properties from time to time and this had included for shooting trips. Significant finds at these properties were four .22 calibre Winchester Winner fired cartridge cases found at Wombeyan Caves, and another four found at Buxton, which ballistics evidence called by the prosecution established had tool marks upon them that were consistent with having been fired by a rifle fitted with the bolt assembly that had been located in the wall cavity at the Eagle Vale home. THE DEFENCE SUGGESTS THAT A MEMBER OF THE MILAT FAMILY, OR A CLOSE ASSOCIATE, MUST HAVE BEEN RESPONSIBLE FOR THE MURDERS 1.10 Ivan Milat’s defence counsel, Terry Martin, made a dramatic, but perhaps inevitable, concession when he submitted to the jury at the beginning of his closing address at the trial (at p 3330 of the transcript):

[page 18] There can be absolutely no doubt that whoever committed all eight offences must be within the Milat family or very, very closely associated to it. Blind Freddy can see that. There can be absolutely no doubt.

And a little later (at p 3331 of the transcript): … whichever way you look at it, it is absolutely irrefutable that whoever has committed these eight offences must be either within the Milat family or so very closely associated with it, it does not much matter. Blind Freddy can see that. There can be absolutely no doubt. The question is, who is it within the Milat family who has committed these eight offences? The question is, do you have a reasonable doubt that it was Ivan Milat as opposed to someone else in the family? Well, that is the starting point. It has to be.

It is important to note that this statement by defence counsel was not itself evidence, but rather a submission made in the defence closing arguments, presumably with a view to convincing the jury that they might have a reasonable doubt, on the evidence, as to whether Ivan Milat was the killer. However, this argument ultimately was rejected by the jury as clearly indicated by the verdict. The defence argued that it was reasonably possible that Richard Milat may have acted with Walter Milat or an unnamed associate in committing the murders, and then planted incriminating evidence on Ivan Milat’s residence at Eagle Vale and in the alcove at Walter’s residence. It was suggested that comments made by Richard Milat to two witnesses, prior to the location of some of the bodies, were indicative of Richard having some knowledge at least of some of the murders, although Richard Milat denied these conversations occurred. The jury was clearly not persuaded by these arguments. In addition, Ivan Milat denied having any knowledge that either Richard or Walter were involved. Ivan Milat maintained that the items belonging to the deceased backpackers that were found at the Eagle Vale home and in the alcove at Walter Milat’s property had all previously been located at Margaret Milat’s home in Guildford (where he had been residing at

the time of the murders and the offence against Onions) and the items had either been deliberately planted at Eagle Vale by someone or had been brought there innocently by him from the collective mix of items available from Guildford. The prosecution, on the other hand, pointed to evidence of good relations that Ivan had both with Richard and Walter, and the absence of any motive to plant evidence on their brother Ivan. Paul Onions’ account of the attack on him involved only one attacker, whom he identified as Ivan Milat, who had a gun and a bag of ropes with [page 19] him. It is not difficult to imagine how a strong man acting alone with these items might have compelled even two persons into submission. Of significance was the fact that there was clear evidence that Ivan Milat was not at work on any of the days that victims went missing, although he set up an alibi in relation to Boxing Day, 1991 (the date of the disappearance of Neugebauer and Habschied) when, he asserted, he was at his mother’s home at Guildford for a family gathering. However, the jury clearly found this alibi to be unconvincing after it had been tested and severely weakened in crossexamination, and weighed up with the other evidence in the case. The prosecution case was that one person, either alone or with another or others, was involved in the murder of all seven victims and the offence against Paul Onions, and that Ivan Milat was that person. While there was an abundance of evidence to establish an overwhelming case against Ivan Milat in respect of all of the offences in the indictment, the prosecution had to accept the plain fact that there simply was insufficient compelling evidence to establish a case against any other known person, including any other members of the Milat family, even though it appeared reasonably possible that other persons may have participated with Ivan Milat in one or more of

the murders. Whatever suspicions may have lingered about any friend or relative of Ivan Milat, the evidence against anyone else never rose above mere suspicion, and certainly could not establish the participation of any known person, apart from Ivan Milat, beyond reasonable doubt, in spite of the intensive and massive gathering of evidence by Task Force Air. The prosecution was entitled to, and did, rely on the legal doctrine of ‘joint criminal enterprise’. Essentially, the effect of this doctrine is that if two or more persons participate together in carrying out a crime they have agreed upon then they are each regarded in law as responsible for the actions of one another in carrying out that enterprise. Thus, the prosecution had only to establish that Ivan Milat participated in the murders, either alone or with one or more other persons; it was not necessary to establish in relation to each murder which of the participants (if, indeed, there was more than one) stabbed, shot or killed the individual victims. The prosecution also relied on ‘co-incidence evidence’ pursuant to Pt 3.6 of the Evidence Act 1995 (NSW). Thus, the trial judge, David Hunt CJ at CL, was asked to instruct the jury that the evidence in relation to Paul Onions was admissible as co-incidence evidence in support of the murder charges in respect of the seven deceased backpackers, provided that certain prerequisites of the law were met. In order for the evidence to be used in this way the Crown had to establish three things: that the events of all eight offences (the seven murders and the detaining for advantage of Onions) were substantially similar when all of the evidence in the case was considered; that all eight offences occurred in substantially similar circumstances; and [page 20] that, as a matter of commonsense and experience, it was so improbable that the person who attacked Onions was not also involved in a criminal

enterprise (alone or in company) to murder the other seven, that no other reasonable explanation was available for those similarities. Justice Hunt, in ruling that it was open for the Crown to rely on this ‘coincidence evidence’, noted that the Crown relied upon a ‘signature pattern’ that it argued could be seen in the circumstances in which all eight offences were committed. His Honour was of the view that the probative value of this evidence manifestly and overwhelmingly outweighed any prejudicial effect it may have had, because of the objective improbability of there being any reasonable possibility that a different person was involved in both the detention of Onions and the seven murders. His Honour was of the view that this was an irresistible conclusion. IVAN MILAT’S FOUR-WHEEL DRIVE NISSAN PATROL 1.11 At the time of all of the murders, and of Paul Onions’ encounter with ‘Bill’, Ivan Milat owned a 1987 model two-door four-wheel drive Nissan Patrol. It was silver in colour with a red stripe down the side. It was not disputed at the trial that it was owned and used by Ivan Milat during the relevant years. Ivan had purchased this vehicle new and kept it until September 1992, when he traded it in for a Holden Jackaroo. Paul Onion’s description of the vehicle he rode in with Bill matched the vehicle in almost every detail. He said that it was a four-wheel drive, either a Nissan or a Toyota, with two doors, a wheel on the back, bull-bars, a running board, big tyres and lambswool seat covers. He described it as either white or silver. Mrs Berry, the woman who drove Onions to the Bowral police station, also described the vehicle as having a spare wheel on the back and a red or crimson stripe along the side. Onions also referred to a spare wheel on the back, and in court (after being shown a photograph of the vehicle) he added that he thought it had chrome wheel trims. The defence asserted that the vehicle did not have a spare tyre on the back or chrome wheel trims at the time (these both were added later), and the prosecution did not dispute this. The Court of Criminal Appeal50 noted in relation to this issue (at p 11):

Mr Onions said, in his evidence, that the vehicle had a wheel attached vertically at the rear. Many Nissan 4WD vehicles have such a spare wheel, but it was shown that the appellant’s did not have one in January 1990, although one was fitted later. A similar statement about the vehicle was also made by the rather terrified woman into whose car Mr Onions had jumped. The jury were [sic] entitled to take the

[page 21] view that this evidence, of Mr Onions and the woman, was mistaken. Indeed, what may have been at work is an example of the well known displacement effect about which trial judges commonly warn juries in relation to photographic identification.

And (at pp 28–9): If, as the jury were [sic] entitled to conclude, Mr Onions was mistaken about the rear mounting on the vehicle, it is not difficult to understand how such a mistake could have been made. As was noted earlier, the first time Mr Onions came out with the proposition about the rear wheel seems to have been in 1994, more than four years after the event. It is not clear what photographs he had been shown before then, but it is clear that, in the course of giving his evidence at the trial in 1996, he was shown by the Crown Prosecutor, in a leading fashion, photographs of a silver Nissan Patrol which had a vertically mounted rear spare wheel. That he may have made a mistake is not inconsistent with his evidence being otherwise reliable.

Ivan Milat traded in his Nissan to a dealer, and it was then sold by another dealer to a Mr Gill. In mid 1993 Mr Gill was vacuuming the car when he located a bullet under the vinyl flooring. It proved to be an unfired Eley .22 calibre round and he kept it, and he was able to provide this to the police when, in March 1994, they spoke to him about the car. The car was thoroughly examined by scientific officers, and a bullet hole was discovered in the passenger side door consistent with a .22 calibre bullet being fired from inside the vehicle towards someone sitting in the passenger seat.51 The hole had been repaired with body filler and paint by a Guildford neighbour of Ivan Milat, Mr El-Hallak. Ivan Milat had told El-Hallak that his rifle had accidently gone off in the car during a hunting trip. El-Hallak told police he had completed the job in three days. In the vehicle’s log book (retrieved by police from Mr Gill’s possession) was an entry in Ivan Milat’s handwriting stating:

‘LHD repair (or repaint) 10/1/92 73,000 kilometres’. ‘LHD’ almost certainly was shorthand for ‘left hand door’. Thus, the repairs were done within a fortnight of the disappearance of Neugebauer and Habschied. It will be recalled that there were Eley cartridge cases found at the scene of their murders. THE NEW SOUTH WALES COURT OF CRIMINAL APPEAL DISMISSES MILAT’S APPEAL 1.12 The Court of Criminal Appeal also found no error in the following remarks of Hunt CJ at CL in his judgment of 5 September 1996, relating to evidentiary rulings he had made during the trial, including the evidence of [page 22] Onions having identified Ivan Milat in the photo identification procedure (at p 31): Although there were indeed frailties in Mr Onions’ identification evidence — principally the fact that there were only three photographs in which the man pictured could be said to have had a Merv Hughes moustache, and of those three in only one (that of the accused) did the man otherwise fairly fit the description that Mr Onions had given — it seems to me that this could adequately be dealt by directions leaving it to the jury to determine whether the identification made by Mr Onions in the context of all of the evidence relevant to the third count was reliable. It was upon that basis that I declined to exclude the May 1994 identification evidence. I should add, as a postscript, that the case was ultimately also left to the jury upon an alternative basis that, in the event that they were not satisfied beyond reasonable doubt that Mr Onions’ identification in May 1994 was reliable, but in the light of the concession that there could be no doubt that it was a member of the Milat family who was responsible for the detention of Mr Onions, they could still be satisfied that it was the accused who detained him based upon the description which Mr Onions gave of his attacker to the police in January 1990, provided that the Crown had eliminated any reasonable possibility that it could have been any of the other members of the family. In my view, that description, in the light of the concession which was made in the final address for the accused, was in any event powerful

evidence supporting the reliability of the identification made by Mr Onions in May 1994, although I did not put it to the jury in that way.

The Court of Criminal Appeal also found the case against Ivan Milat to be a powerful and compelling one, as indicated by the following extract from the court’s decision that neatly summarises much of the significant evidence in relation to incriminating items located by police (at pp 16–21): At the time of his arrest in 1994 the appellant was living at [number] [XXXXXXXX XXXXXX], Eagle Vale. He had previously been living at his mother’s home. He also had some belongings which were being stored for him at the house of his brother, Walter Milat. There was a great deal of evidence concerning items of personal property found by the police, some of it at the appellant’s house at [Eagle Vale], some of it amongst belongings of the appellant at his mother’s house, and some of it at Walter Milat’s house. The detail of some of that evidence will be discussed below.

[page 23] The Crown built up a powerful circumstantial case against the appellant. The circumstances relied upon, and which the jury were [sic] entitled to regard as proved, were the following: (1) The accused was in possession of a substantial amount of the deceased backpackers’ property at his house at [Eagle Vale], with his own property in the alcove under Walter Milat’s house, and at his mother’s house in Guildford where he was living at the time of the murders. (2) The accused owned the Ruger 10/22 which was used to shoot Caroline Clarke and Gabor Neugebauer. (3) The accused was in Area A at the same time, or at much the same time, as Gabor Neugebauer was shot there with that Ruger 10.22, because his Anschutz rifle was used there. (4) The Winchester Winner ammunition located with the accused’s property in the alcove under Walter Milat’s house had the same batch number as that apparently used in Area A where Gabor Neugebauer was shot, having been manufactured during the day shift at the Winchester factory at Geelong. (5) The Winchester Winner ammunition with an ‘H’ head stamp located in the accused’s bedroom and in the spare room at [Eagle Vale], and the Winchester Subsonic ammunition with a ‘W’ head stamp located with the accused’s property in the alcove under Walter’s house, were consistent with

cartridge cases located in Area A where Gabor Neugebauer was shot. (6) The batch number on Eley ammunition located with the accused’s property in the spare room at [Eagle Vale] corresponded with that on an Eley box located at Area A where Gabor Neugebauer was shot. (7) The bullets recovered from and under the head of Caroline Clarke had a gouge mark, most likely from a silencer fixed to a rifle. The accused had a handmade silencer in his garage at [Eagle Vale], and had stated an intention to purchase a factory made one. (8) The accused left his Nissan with his neighbour, Mr El-Hallak, to repair the damage caused by a bullet having discharged inside it, just over a week after Anja Habschied and Gabor Neugebauer disappeared. (9) The accused was in possession of a piece of rope which was used in the murder of Caroline Clarke. (10) The ingredients of the leash device at the Neugebauer scene were all available to the accused in his home at [Eagle Vale].

[page 24] (11) Industrial recycled rags were used at the killings of Walters, Habschied, Neugebauer and Schmidl and in the storage of some ballistics. (12) The accused carried a Bowie knife in his car which could have been used to stab the victims. (13) The pattern of all seven murders is the same. (14) The accused’s attack upon Paul Onions was a thwarted attempt to take him into the Belanglo State Forest where he was to be killed. The property referred to in (1) above included the following. Simone Schmidl’s blue sleeping bag cover was found in the appellant’s garage at [Eagle Vale]. It containing [sic] a number of her personal belongings. Her sleeping bag was in a bedroom in the house. Her water bottle and pouch were in another room. Her name, ‘Simi’, was on the bottle. Her backpack was in the possession of the appellant’s sister-in-law, who said the appellant had given it to her. Caroline Clarke’s camera was found in the kitchen at [Eagle Vale]. There was found a photograph of the appellant’s girlfriend, Chalinder Hughes, shown wearing a Benetton top identical to one Caroline Clarke had in her backpack. A sleeping bag said to belong to Deborah Everist was found in a bedroom at [Eagle Vale]. Reference has already been made to Paul Onions’ shirt. It was, presumably, this kind of evidence that led trial counsel for the appellant to say in his final address:

There can be absolutely no doubt that whoever committed all eight offences must be within the Milat family or very, very closely associated with it. Even that concession, however, does less than justice to the significance of the precise location of many of the items of property found. As to (2) above, the evidence showed, and it was not ultimately disputed, that Gabor Neugebauer and Caroline Clarke was [sic] shot by a Ruger 10/22 firearm to which a certain Ruger bolt assembly had been fitted. The Crown relied upon the following sub-set of circumstances, which the jury were [sic] entitled to regard as established by the evidence, to prove that the appellant owned the Ruger 10/22: (1) The Ruger parts were well hidden in the wall cavity at [Eagle Vale] at a time when the accused knew of the significance of the bolt assembly to the backpacker murders. (2) A Ruger receiver was found apparently hidden in the accused’s boot when the police called upon him to surrender. (3) The Ruger parts were painted in camouflage colours when no Milat, other than the accused, was in the habit of painting his weapons in that way.

[page 25] (4) The ‘Select Fire 10/22’ book in his possession explained how a Ruger 10/22 could be converted into a fully automatic weapon. (5) The fifty shot magazine in his possession was more appropriate to a fully automatic weapon than the standard ten shot magazine provided. (6) The single fired Winchester cartridge case amongst the accused’s ammunition in a bag in the spare room at [Eagle Vale] was at least consistent with having been fired by a Ruger 10/22 to which this bolt assembly had been fitted, and (according to Detective Superintendent Prior) actually fired by it. (7) The Winchester Winner ammunition box in his possession had the same batch number as that apparently used in Area A where Gabor Neugebauer was shot. (8) Other Winchester ammunition in his possession had the same head stamps (‘H’ and ‘W’) as that located in Area A where Gabor Neugebauer was shot. (9) Either the silencer in his possession or one which he was purchasing could have been used when Caroline Clarke was shot. (10) He was a customer of the Horsley Park Gun Shop at the time when the

Ruger 10/22 was sold. (11) He adopted a procedure when Walter purchased the so-called ‘new’ Ruger 10/22 on behalf of the accused in 1992 which prevented its purchase being traced to him. (12) He was in possession of a Ruger 10/22 before that time which Walter had unsuccessfully attempted to purchase. (13) This particular Ruger 10/22 to which the bolt assembly located in the wall cavity had been fitted had been used at Buxton and at the Wombeyan Caves Road property where the accused had been shooting. (14) The bolt assembly was wrapped in two pieces of cloth which were similar in nature to the rag which the accused had wrapped around the bolt of a rifle located in his locker at Guildford. There is no ground of appeal which argues that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant.

The evidence in the case for the prosecution against Ivan Milat was immensely strong, but it was complex and required a very thorough mastery of its facts, twists and turns in order to present the strength and the irresistible logic of it in a clear light to a jury. From the way the defence case had been conducted during the defence cross-examination of some prosecution witnesses, it seemed likely that some attempt would be made [page 26] by the defence to suggest that the culprit was someone else within, or close to, the Milat family. Ivan Milat took the stand, and in response to questioning from his counsel, Terry Martin, he denied any involvement in any of the charges. He raised the suggestion that items may have been planted by someone (but not the police) in order to incriminate him, yet he stopped short of directly nominating who such a person might be. Martin’s opening address sets out the essential assertions of the defence case, and is reproduced below (from the trial transcript for 17 June 1996):

Mr Milat will tell you that he did not kill any of the backpackers, nor did he have any connection with the offences, nor any knowledge of these matters. He will tell you that he did not attack Paul Onions or have any connection with or knowledge of that offence. Mr Milat never owned a Ruger 10/22 rifle. He will tell you that he had absolutely no knowledge of those parts found in the cavity at [Eagle Vale], nor in the boot in the cupboard, the receiver in the cupboard at [Eagle Vale] until after these proceedings were under way. He had no knowledge of the existence of those parts whatsoever. In relation to the Anschutz rifle, Mr Milat purchased the Anschutz rifle but as far as he knew, Walter Milat had possession of that particular gun for months at a time from a period shortly after the rifle was purchased. The rifle had a threaded barrel at the time of purchase by Mr Milat. It already had the threaded barrel on it. That’s how it was purchased. Walter Milat wanted the rifle and there was an arrangement to pay, as Mr Milat recalls, about $150 for it — that money never having been paid. Whilst he was still living at Guildford, Mr Ivan Milat recalls seeing that rifle there on occasions, but effectively the rifle was with Walter Milat, presumably was with Walter Milat. From time to time he would see it at Guildford amongst his other property, but otherwise it was missing, as I say, for months at a time. As far as Mr Milat knows, the Anschutz did not go over to [Eagle Vale] from Guildford and therefore it was not in the move of weapons and ammunition from [Eagle Vale] to Walter Milat’s place. Members of the jury, Mr Milat will tell you that he knows and has known for a long time where the Belanglo State Forest is. He has

[page 27] worked on the roads throughout New South Wales and he has worked nearby the Belanglo State Forest. He has been to Bowral Pistol Club, but he will tell you that he has never been into the forest itself. He has certainly never been into the area described by Karen Milat. He will tell you, you might recall that Karen Milat gave evidence that they went into the forest, I think on three occasions during 1983. In 1983 he and Karen Milat had the Mitsubishi Colt, they did not have a 4-wheel drive. Karen Milat assured you they had gone in with the 4-wheel

drive in 1983 on whatever occasions. The Mitsubishi 4-wheel drive was not manufactured until 1984. In relation to the Browning pistol, Mr Milat will tell you that he did own the Browning pistol and he did have it when he was with Karen Milat. He will tell you that he has never seen that weapon again until the commencement of these proceedings from the time that Karen Milat left him back in 1987. He did not have that weapon, did not know of its existence at [Eagle Vale] under the washing machine or anywhere else until after the proceedings started and the police produced that weapon. In relation to the black powder gun he will tell you that he owns the black powder gun you have seen here in the box and he will tell you that he also owned a 45 calibre pistol, not a revolver, and he has never owned a revolver. In relation to items belonging to the deceased backpackers found at [Eagle Vale], he will tell you that he did not bring those items into the house. He certainly had no knowledge of their origins. In respect of most of the items he did not even know of their existence until after the police proceedings. The other occupier of the house as you have heard was Shirley Soire, his sister. In relation to the Benetton top Mr Milat did not give such an item to Chalinder Hughes. He can only recall what the shirt looks like from having seen the photographs tendered here in this court. In relation to the Triple S camera that was found at [Eagle Vale], Mr Milat will tell you that he was indeed aware of a camera in the house and believed it was a Triple S, indeed he has used the camera. He will tell you it is not his camera, he presumed it was Shirley’s camera and was in the house when he was living there. In relation to the backpack that was given to Joan Milat, that is Alex Milat’s wife, he will tell you that he knew that Joan Milat was planning to go on a walking trip to Tasmania, he had seen the backpack in the garage at Guildford, he gained the impression from Richard Milat that it belonged to either Jock Pittaway or his girlfriend, it was not wanted any more, but they had gone back to New Zealand and he

[page 28] asked permission from Richard, who was living there at Guildford, if he could take the backpack and that is what he did do and gave it to Joan Milat. In relation to items found at [Richard Milat’s property at Hilltop] and Guildford, Mr Milat had no knowledge nor connection with the items belonging to the deceased found at Richard’s place in [Hilltop], nor

did he have any knowledge nor connection with the Next shirt, he does not know that shirt nor the grandfather style shirt which the police found at Guildford. One of the items found you will recall at Richard’s place has been described as Ivan Milat’s tent. Indeed it is but to the best of his recollection he last used that tent in 1992 and did not have it thereafter. It was kept in brown bags, as you have seen, not in a hessian bag. When he last saw it it was not in a hessian bag with rags as found at Richard’s place. In relation to the items at Walter Milat’s place, Mr Milat will tell you that he does not own the blue day pack. In relation to the haversack also found in the alcove he will tell you that he, as did a lot of members of the family, he did have a haversack and they were used for the purpose of carrying ammunition when they went shooting, things of that nature. The one in the alcove at Walter’s place is not his haversack and he can point to certain dissimilarities, not the least of which is it never had ‘Ivan’ written on it, he never wrote ‘Ivan’ on his haversack and he can point to other features about it which do not coincide with his haversack and he will tell you that he did not see either item at [Eagle Vale] and as far as he is concerned those items did not go over in the move to Walter’s place when all the guns and ammunition were taken over. In relation to items such as pull ties and sash cords, he will tell you that he has had access to pull ties and to sash cords and electrical tape, both at Guildford and [Eagle Vale]. Whilst at Guildford anyone at the house could have access to those items and indeed any property at the house at Guildford. He had never seen a pillowslip and sash cords like that. As far as he knew, he had never seen the pillowslip before. That is not contesting Karen’s evidence that it belonged to Margaret Milat, but he has never known that item. Certainly he had never seen a pillowslip carrying such cords and that goes to both at Guildford and at [Eagle Vale]. He has never kept sash cords in a pillowslip.

[page 29] He will tell you that he has never had a blue and yellow Telecom rope of the type that have been tendered in this court — one found in the forest and one found at Richard’s place. He disputes Karen Milat’s evidence. He never had a blue and yellow Telecom rope and as far as he can recall he has never even seen one till these proceedings commenced. He certainly did have sash cords and he certainly did use them, including the period when he was with Karen Milat. They were a common rope that he used.

In relation to the moving of guns and ammunition from [Eagle Vale] to Walter Milat’s place, he will tell you that what led up to the movement of guns and ammunition were these features. He knew that Alex Milat had spoken to police in late 1993. He knew that Bill Ayers, a friend of Alex, had been spoken to by police. He knew that Walter Milat had been questioned by police about guns. I think Mr Leach today made some reference to that. He will tell you that to the best of his recollection it was even before Christmas 1993, so late 1993, workmates of his had been questioned by police — not only in relation to guns generally, but from what the workmates told him, they were asking about guns of his. He recalls that to be late 1993. Mr Leach indicated it may have been early 1994. The JW15 rifle, which is one of the rifles in the locker at Guildford — and that is one of his rifles; the rifles in the locker are his — that rifle — and you will get to see it later — was threaded and he will tell you that it was threaded at work with the assistance of one of the fitters. One of the features concerning Mr Milat was that if the police spoke to that particular fitter it would naturally lead them to look for a silencer connected with Mr Milat — silencers being illegal at that time and apparently still are. Any search of [Eagle Vale] at that time would not disclose a JW15 with a threaded barrel, but if police searched at that time they would have found any number of illegal guns in his possession. As recently as I think a week ago, a list of those illegal guns was tendered in this court. So that at this time a lot of people were being questioned about guns and Mr Milat believed that he was going to be one of the persons questioned and perhaps searched for guns. Another feature was that Shirley Soire, with whom he shared the house, had been complaining about the amount of guns and ammunition kept in the house. He will tell you that — and it may indeed be obvious from the stockpile of the photograph of the alcove — that there was a huge amount of ammunition being kept at [Eagle Vale] prior to the move. There were crates of it.

[page 30] One of the complaints made was that of this ammunition being kept in the house at [Eagle Vale]. He will tell you there was also an occasion round about that time when a workman had to go up into the ceiling to do some work and Mr Milat was concerned that he would see the great volume of weapons and ammunition there. He covered it up and monitored the workman while he was there. With those things that he knew about, Mr Milat contacted Walter Milat to see if it was all

right to move weapons and ammunition over to his place at some stage, telling him of some of his concerns. It was then some weeks later, as he recalls, and on a night when Mr Ivan Milat was supposed to be doing night shift and the work was cancelled — for what reason he cannot now recall whether it was the weather or whatever — but that then gave him an opportunity to make the move that night. He contacted Walter Milat to see if that suited. He didn’t really expect his assistance, but you have heard that both Walter and Richard did assist him to take the stockpile of weapons and ammunition over to Walter’s place. But to the best of Mr Milat’s recollection, that move took place as early as just before Christmas 1993 or very early 1994. It took place as early as that. Mr Milat has no knowledge of the Anschutz, the blue day pack and the haversack going over in the move and therefore he believes that that must have been placed in the alcove subsequent to the move. He has got no knowledge of seeing them being moved and therefore he believes they must have been placed there subsequently. I should indicate also in relation to the new or slightly used Ruger 10/22 — Mr Milat had no knowledge of it being at [Eagle Vale] either and but for the evidence of Walter Milat, who told you that he had brought that particular rifle over to [Eagle Vale] when Ivan Milat wasn’t home at some stage, and placed it with other rifles there — but for hearing that evidence Mr Milat would have thought that it was never at [Eagle Vale] and didn’t go over in the move. In the light of that evidence perhaps it did, but he had no knowledge of its existence at [Eagle Vale]. The police raid on Mr Milat as you recall was on 22 May 1994. Prior to the police raid but bearing in mind other evidence that you have heard and what Mr Milat will tell you about what information he was getting, the police were making enquiries in respect of guns and his guns and as you have heard today about the police looking for Rugers and a 4 Corners program making reference to Rugers and what-have-you, not only that but prior to the police raid Mr Milat was made well aware that the police were investigating a matter concerning his Nissan Patrol, which he no longer owned, but that vehicle and he was made

[page 31] well aware of that on the night before the raid, the police had been out to see Deborah Milat on the 21st and indeed Bill Milat on the 21st and he knew on the night of the 21st that they had spoken to Deborah Milat at Buxton and knew that they had already spoken to Bill Milat at Lake Tabourie and he knew that all before the police raid on the morning of the 22nd. He will tell you that he was unconcerned by the news that they were making investigations in

respect of him and his vehicle. He will tell you as far as he was concerned if the police did come the only gun that was there was the .45 calibre pistol, which was hidden outside, not inside the house. He will describe where it was hidden outside and as indeed the police never did find it; he certainly did not know that there were Ruger 10/22 parts hidden in the cavity of the wall nor a Ruger 10/22 receiver stuck in his boot in the cupboard, nor that there was a Browning under the washing machine and he certainly did not know that there were items belonging to deceased backpackers lying around his house — lying around his house, you know, for the police to find. He will tell you what he recalls that morning, the raid and the arrest procedure. Members of the jury, the Nissan Patrol motor vehicle that he owned between 1987 and 1992 takes on some significance as you are aware. There was no doubt that a number of features described by Mr Onions are features which were on Mr Milat’s Nissan Patrol. However, there are also significant dissimilarities as to the features that were on Mr Milat’s vehicle in January 1990 compared with those features seen by Mr Onions on the vehicle driven by the person who attacked him, and it was not Mr Milat’s vehicle, he did not attack Paul Onions, it was not his vehicle. You will recall that both Mr Onions and Mrs Berry have referred to the vehicle having a rear tyre rack and spare tyre on the back of the vehicle. Mr Milat did not have the tyre rack on the back of the vehicle as at January 1990. Indeed he did not get the tyre rack until December 1990. You will also recall that Mr Onions refers to chrome on the wheels of the vehicle driven by the person who attacked him. Mr Milat did not have chrome on the wheels until 1991 and did not have the cover for the spare tyre on the back until 1991. Now this evidence gets a bit convoluted, you will have to bear with us through this. The Nissan was purchased in 1987 and there were accessories on the vehicle at the time of purchase. It was sold something as a display vehicle with added extras, a U-Beaut vehicle, that is how it was sold to him and did have accessories on it at the time of purchase and they included not only the bull-bar and side steps but included the pinstripe and 4 Nissan 15 inch × 7 inch wheels with 4 Desert Dueller tyres 15 inch × 10 inch and the tread was 604.

[page 32] It had a standard spare tyre and had a standard spare tyre because it did not have the rack on the back, therefore the standard spare tyre had to go underneath the vehicle, the spare is only big enough for a standard spare tyre, it will not fit the Desert Dueller size or wide tyre size. In about November or early December 1990 a person named Stanley Piddlesden sold to Ivan Milat 6 wheels with tyres … There were actually 5 were really purchased and the sixth one was sort of thrown in. There were 5 15 × 7 inch Nissan wheels fitted with 15 inch × 10 inch

Desert Duellers and the tread on those was 610, and the sixth wheel was again a 15 inch × 7 inch with 15 × 10 Desert Dueller but a different tread, was a 604. In December 1990 after getting these tyres and wheels Mr Milat arranged by telephone to have Formula Off-Road Equipment, that is Mr Badman’s outfit, fit a rear tyre rack to his vehicle to enable Mr Milat to put the fifth wide Desert Dueller spare tyre on the back of his vehicle and this was done, he recalls, on the last working day of the year, 21 December 1990 and Mr Milat recognised Mr Badman when he gave evidence the other day and you recall I questioned him then about whether he did some work of an office salesman type work. He will tell you that Mr Badman was the salesman that day and he recalls in discussions with Mr Badman that Mr Badman told him that he had a late model Nissan Patrol himself, a 4-door vehicle. That was just part of the discussion with Badman at the time of the work being organised. So the rack was put on — the tyre rack was put on and the five new wheels and tyres were put on the vehicle on 7 January 1991 and one knows that because it is noted in the vehicle log that has been tendered before this court. The chrome wheel trims and rear wheel tyre cover came from Gerhard Soire a month or two after Ivan Milat got the new wheels and tyres on. You will note in this trial that the police took possession of photographs everywhere they could. Mr Milat does not have any other photographs other than those that the police have taken possession of. So if there are no photographs of the vehicle in January 1990, February 1990 or December 1989 or whatever, he simply will tell you he has not got any photographs secreted anywhere, the police as far as he knows took any photographs that were around. The defence anticipates calling Mr Piddlesden in relation to these matters and also Gerhard Soire and also Bill Milat who did get the benefit of at least most of the original wheels and tyres that came off the Nissan Patrol, and Bill Milat will tell you what he did with the wheels and tyres that he got. They ended up being sold at a garage sale, not till 1995, the original ones.

[page 33] I should indicate that the evidence will also disclose that the wheels on the Nissan Patrol, now in the possession of Mr Gill, which Mr Milat says he got from Piddlesden in late 1990 — those wheels were manufactured in October 1990. The defence also anticipates calling a Ron Cochrane, who was an employee whilst Mr Barber was the proprietor of Formula Off-Road and he continued on with the business after it changed hands. He will tell you that he has looked at photographs of the rear tyre rack currently on the Nissan Patrol owned by Mr Gill and he will tell you that the tyre rack is

consistent with it having been put on in December 1990 — contrary to what Mr Badman said to you the other day. Don’t get me wrong, that is not to say it is inconsistent with the item being on in January 1990. It is consistent with it also having been put on in December 1990 — indeed they continue to make and put on tyre racks of that very description to this day — contrary to what Mr Badman said. In relation to Boxing Day 1991, Mr Milat was at Guildford on that day. In the morning he took his mother to the cemetery to visit the grave of his father, thereafter back at the house, and that is where Boxing Day was spent in December 1991. There will also be some ballistics evidence, it is anticipated, from Mr John Barber and his opinion almost entirely — if not certainly by and large — coincides with that of Mr Dutton. He disagrees with Mr Prior — as did Mr Dutton — that one can identify that cartridge case at [Eagle Vale] as coming from the Ruger 10/22 bolt. He disagrees with that identification, but he otherwise confirms what Mr Dutton says. The defence also anticipates calling Chalinder Hughes, who will tell you about the Benetton top and what she recalls of the morning of the raid.

The Supreme Court trial had commenced in the old Banco Court in St James’ Road on 25 March 1996 and after carefully adducing a vast amount of evidence the prosecution closed its case nearly three months later on 17 June 1996. That day, the defence commenced its case by calling Ivan Milat, whose evidence-in-chief came out much as Milat’s defence counsel, Terry Martin, indicated that it would, and such was the state of things when Mark Tedeschi QC commenced his cross-examination of Ivan Milat shortly after the morning tea adjournment on Tuesday 18 June 1996.

1

There was evidence at the trial that the hairs were compared microscopically with known hairs of Ms Walters, by a scientist who was of the opinion that two of the hairs appeared to be within the range of Walter’s own hair, three were too deteriorated to determine their origin, and six did not appear to be within her hair range. Although the scientist thought it very unlikely those six were Joanne Walters’ hairs, he conceded that it was possible that they were. Subsequent DNA testing (generally far more reliable than microscopic examination) was also done on the hairs, but this was initially incompetently done and the results could not be relied upon. Further DNA testing competently done revealed a partial profile that provided support (albeit weak support due to the partial nature of the DNA profile) for the proposition that all of the hairs were consistent with being Walters’ own

hair, and also established that the hairs did not come from any member of the Milat family. 2

An example of a firing pin impression on a cartridge case can be seen in Photo 13. When a cartridge case in question is examined under a comparison microscope for tool marks, together with a cartridge case known to have been fired by the firing pin of a particular firearm, ballistics experts can establish whether or not the same firing pin has struck both cartridges.

3

See Photo 42.

4

See Photo 30 — a police photo of what a Colt .45 revolver looks like if loaded with copper-tipped bullets and pointed at the viewer.

5

See Photo 43, showing a pillowslip containing sash cord ropes found on a shelf in Milat’s garage during a subsequent police search.

6

See Photo 73.

7

Please note that the suburb Hill Top is spelt as one word throughout the official court transcript.

8

See Diagram 1 for a floor plan of the house, prepared by police.

9

See Photos 3, 4 and 5.

10 A head stamp is a letter or similar symbol impressed by the manufacturer into the bottom of a bullet’s cartridge case, to identify the manufacturer and differentiate the place and/or time of manufacture. 11 See Photo 76. The evidence from the pathologist called by the prosecution was to the effect that this knife was not consistent with having caused the stab wounds to Joanne Walters; nor was it used on Caroline Clarke. However, in relation to the other victims, it could not be included or excluded as a possible weapon, since their remains were too weathered and perished to be able to establish this one way or another. 12 The barrel band is a metal band that holds the barrel to the stock of a rifle. See the diagram of a Ruger 10/22 rifle at Diagram 2 and Photo 10. 13 See Photos 31 and 32. 14 See Photo 17. 15 See Photo 56. 16 See Photo 57. 17 See Photo 54. 18 See Photo 55. 19 See Photo 60. 20 See Photo 45. 21 See Photo 7. 22 The receiver is that part of a firearm that houses the working parts: see Photo 2 and Diagram 2. 23 See Photo 18. 24 See Photo 59.

25 See Photos 74 and 75. 26 See Photo 14. 27 See Photo 29. 28 See Photos 35 and 36. 29 See Photo 27. 30 See Photo 37. 31 See Diagram 3 and Photo 22. 32 See Photo 34. 33 See Photos 25 and 26. 34 See Photo 21. 35 See Photo 11. 36 See Photo 22. 37 See Photo 62. 38 See Photo 63. 39 See Photo 9. 40 See Photo 15. 41 See Photo 6. 42 See Photo 65. 43 See Photo 67. 44 See Photo 66. 45 See Photo 68. 46 See Photo 77. 47 See Photo 71. 48 See Photos 69 and 70. 49 See Photo 24. 50 R v Ivan Robert Marko Milat, NSWCCA, CCA 60438/96, 26 February 1998 per Gleeson CJ, Meagher JA and Newman J. 51 See Photo 72.

[page 35]

CHAPTER 2 DAY ONE OF CROSS-EXAMINATION 18 JUNE 1996 OVERVIEW Day one of cross-examination by Mark Tedeschi QC demonstrates how to set the tone of a cross-examination and establish authority as a cross-examiner. Over the course of this day, Tedeschi used a number of cross-examination techniques to great effect; namely: closing the gates; linking back; echoing; probing; itemisation; insinuation; repetition and persistence; ‘string of beads’ questions; using the phrase ‘please explain to the jury’; undermining by extrapolation and appropriate use of sarcasm; undermining by pointing out absurdities; and climactic questions. Other techniques that allowed Tedeschi to build on and maintain the pace of cross-examination include: approaching the witness;

confronting the witness with an exhibit; asking the witness to read aloud from an exhibit; dealing with a vague answer; not settling for a ‘hedged’ answer; and making use of undisputed items; getting the witness to admit unavoidable patent truths. The rule in Browne v Dunne is also discussed.

CROSS-EXAMINATION CROWN PROSECUTOR: Q. Mr Milat, on Saturday 21 May 1994, the day prior to your arrest, at about 3.15am were you loading the road profiler that you worked on, on to a transport vehicle of CAD?1 A.

I could have been, yes. [page 36]

Setting the tone and establishing the authority of the crossexaminer 2.1

The opening sequence of questions at the commencement of a crossexamination provides an opportunity not to be squandered and will often set the tone for the cross-examination. It is often very important for the cross-examiner to establish his or her authority and control over the witness from the outset. Here, Tedeschi was aware that Milat had been under police surveillance for some time, particularly the day before his arrest. Tedeschi made very effective use of this information by asking Milat a series of questions that made it clear that his exact movements, to the minute, were known with precision by the cross-examiner. The witness was asked a series

of questions, about which there could be no argument, and to which he had no option but to answer ‘yes’. This kind of approach is likely to leave the witness wondering: ‘What else might the cross-examiner know in such detail about me?’. There are many other approaches to opening a cross-examination, but this was a very effective one in the circumstances of this case. Q. And did you travel in a convoy with the road profiler to the roadworks on the F5 at the intersection of Campbelltown Road and the Sydney Western Freeway at Glenfield? A.

Yes.

Q. Is that where you were working at that time? A.

Yes.

Q. Did you park at that intersection and later did you operate the road profiler? A.

That’s right.

Q. What sort of machine is a road profiler? A.

It digs up the road, excavates the road. You can set it for various depths, just profiles the road, can either go down a couple of millimetres or can go down 300 millimetres deep.

Q. What was your function with the road profiler? A.

I was ganger operator.

Q. So did you actually operate the machine? A.

Yes, it was a two-man job them machines are.

Q. You worked on that day with a man by the name of Mr Hans Jensen? A.

That’s right.

Q. J-e-n-s-e-n? A.

That’s right.

Q. Did you take turns with operating the machine? A.

Most of the time he drove it, if that’s what you mean, he drove it. [page 37]

Q. Yes. So what was your role, when he drove it what was your role? A.

I used to monitor the depths.

Q. So would that require you walking on the road in close vicinity to where the road was to be dug? A.

Yes.

Q. Is that a messy sort of job, a dusty sort of job? A.

Yeah, anywhere where you are, if you are around the machine, it’s dusty.

Q. Around 12.10 on the afternoon of Saturday 21 May did you cease work and drive the road profiler on a transporter to the intersection of Campbelltown Road and the freeway? A.

Put it on the transporter?

Q. Yes.

A.

At 12.10?

Q. By 12.10 had you driven to the intersection of Campbelltown Road and the freeway? A.

Yes.

Q. What sort of vehicle was it that had the road profiler on it? A.

12.10?

Q. No. What sort of vehicle was it that carried the road profiler? A.

A low-loader, a float we call them.

Q. A float? A.

Yes.

Q. Did that have the registration SOC-249. Do you remember that? A.

I couldn’t tell you.

Q. Did you leave that area of the F5 freeway and travel to the CSR Depot at Rosehill? A.

Yes, but you are talking about that vehicle with the float number, you are talking about?

Q. Yes. A.

That was not the float number, that’s our service truck.

Q. So you were in the service truck, is that right? A.

Correct.

Q. Did the service truck and the road profiler leave on that day

together? A.

No. [page 38]

Q. Did you go to the CSR depot at Rosehill arriving about 12.50 in the afternoon? A.

Yes.

Q. At about 1.27 did you drive the service vehicle away from the CSR depot at Rosehill? A.

Yes.

Q. And where did you go? A.

Back to the job.

Q. Did you stop off somewhere shortly after 1.27pm on the afternoon of Saturday 21 May? A.

I could have, yes.

Linking by establishing the witness’s habits (and opportunity) through the witness 2.2

The police surveillance established that Milat had, the day before his arrest, gone to the very shop (Lombardo’s) where Paul Onions, the English backpacker who made a fortunate escape from Milat, had accepted a lift from him in January 1990. Linking the accused as a frequenter of the scene where one of the hitchhikers said he had been offered a ride by the offender as a prelude to the subsequent detaining of Onions was an important piece of circumstantial

evidence. Asked, as it was, in the midst of other irrefutable questions to which Milat had to answer ‘yes’, Tedeschi’s question was given added impact by framing the question in the way he did: ‘Where do you think you might have stopped off at?’, and having the witness himself make the significant reply: ‘I think I stopped at Lombardo’s shop’. This is far more effective than simply asking: ‘You then stopped at Lombardo’s didn’t you?’. It is often more effective to permit the witness to deliver the critical information in response to a non-leading question, even when cross-examining. This is very fine advocacy. Q. Where do you think you might have stopped off at? A.

I think I stopped at the Lombardo shop.

Q. This is one of those occasional weekend visits to Lombardo’s, is it? A.

Yes.

Q. You stopped off at Lombardo’s at about 1.27 or thereabouts on the afternoon prior to your arrest? A.

That’s what I’ve been told.

Q. Well that is what you believed, isn’t it? A.

Could be, yes. [page 39]

Not settling for a ‘hedged’ answer 2.3

By this question, Tedeschi re-directs the witness back to the question

that has been asked and ensures that it is answered — it is important not to permit a witness to avoid disclosing what they know to be the case, by a ‘hedging’ answer such as was given here (‘That’s what I’ve been told’). It is also important to recognise this kind of response, which can appear in a multitude of forms. Q. You accept that, don’t you? A.

Yes.

Q. At about 2 o’clock did you leave Lombardo’s and go to [XX XXXXXXXXXXX] Crescent, Kearns, arriving there about 2.16? A.

Something like that.

Q. You were looking for Chalinder Hughes, is that right? A.

That’s right.

Q. You call her ‘Cylinder’, do you? A.

Yes.

Q. Is that a joke or — why do you call her Cylinder? A.

That’s how I believed her name when I first met her, that’s how I called her, she never pulled me up.

Q. Her name is actually Chalinder? A.

That’s right.

Q. Do you have difficulty pronouncing it, do you? A.

No.

Q. You still call her ‘Cylinder’? A.

That’s right.

Q. Was she at home when you got there at about 2 o’clock? A.

No.

Q. So you left th ere and went back to your home at Eagle Vale, is that right? A.

That’s right.

Q. About 2.30 or thereabouts you went back to [XX XXXXXXXXXXX] Crescent, Kearns, where she lived, is that right? A.

Yes.

Q. By this time she was home and she got into your vehicle, which was the service vehicle? A.

That’s right. [page 40]

Q. And you then went back to the roadworks situated Campbelltown Road and the F5 Freeway, is that right? A.

at

Yes.

Q. At about 4.30 a low-loader arrived and you arranged for the profiler to be put on the loader? A.

That’s right.

Q. About 4.43 you followed the profiler on the low-loader to Pymble?

A.

Right.

Q. At about 6.30 you finished up at Pymble? A.

That’s right.

Q. On the way home you stop off at Kentucky Fried Chicken at Liverpool? A.

Correct.

Q. You had Chalinder in the vehicle as well? A.

Yes.

Q. This was still the service vehicle of Readymix? A.

That’s right.

Q. And you arrived home about 7.38? A.

Yes.

Q. And you stayed at home after that? A.

Correct.

The closing of an important gate 2.4

It was important to establish the point in time from which Milat remained at home that day. Tedeschi made an ‘educated guess’ that Milat would have been wearing his work boots at work the day prior to his arrest. When police raided Milat’s home and arrested him, they found a pair of his boots in the hall closet, and inside one of the boots was found the receiver from a .22 calibre Ruger rifle, which ballistics evidence established was the type of weapon used at two of

the murder scenes in the Belanglo State Forest (Clarke/Walters and Neugebauer/Habschied). If Milat had worn these boots the day before his arrest, then no-one else could have ‘planted’ the gun part in the boot other than a person who was in the dwelling overnight. The house had been under continuous surveillance and no-one else was there apart from Milat and his girlfriend, Chalinder Hughes.2 Milat maintained that these were not his work boots, but were for social outings [page 41] on his motorcycle. Whichever they were, the point made is valid — the location of the Ruger receiver inside the boot was highly consistent with a rushed attempt to hide this incriminating evidence, and the point is well made by Tedeschi’s questions here. Q. Had you been wearing the same clothes during all this time? A.

Yes.

Q. And these were your working clothes? A.

Yes.

Q. Did you have your Wirtgen3 hat on, do you remember, the Wirtgen cap? A.

While I was working?

Q. Yes. A.

I imagine I would have.

Q. That was something you regularly wore? A.

Yes.

Q. I think in fact we have in evidence the kind of clothes that you regularly wore at work, is that right? A.

Yes.

Q. That morning you had gone to your work on your Harley Davidson, is that right? A.

No.

QUESTION WITHDRAWN. Q. The previous day when you had gone to work you had driven to work on your Harley Davidson? A.

That’s right.

Q. And you had your boots on? A.

Yes.

Q. Which boots were they? A.

Would be work boots.

Q. Were they work issue boots by Readymix? A.

Yes.

Q. How many pairs of work boots did you have? A.

In my house?

[page 42] Q. Yes. A.

I believe I had four, five pair.

Q. Four or five. There was one pair that was new? A.

I had a couple of pair that’s new.

Q. A couple of pairs? A.

Yes.

Q. Whereabouts were they? A.

There was some kept in the spare room, a pair that I used in the hallway cupboard.

Q. How many new pairs were kept in the spare room? A.

I couldn’t tell you exactly how many, but there would have been at least two, I imagine.

Q. Yes, go on, whereabouts were your other pairs? A.

The pair that I used, me going out boots you’re talking about?

Q. Yes. A.

In the hallway cupboard.

Q. In the hallway cupboard? A.

Yes.

Q. Whereabouts did you keep the boots that you wore on that day, in

the hallway cupboard? A.

No.

Q. Your work boots were kept in the hallway cupboard? A.

No.

Q. Which boots did you keep in the hallway cupboard? A.

The boots I wore when I went out.

Q. When you say when you went out, you mean going out to work? A.

No.

Q. Going out with Chalinder? A.

That’s right.

Q. On your motor bike? A.

That’s right. [page 43]

Q. So those work issue boots that were kept in the hall cupboard, they were used by you to ride your motor bike? A.

Socially, yes.4

Q. To go to work you used your motor bike the previous day? A.

Yes.

Q. And whereabouts did you keep the boots that you wore to work that day?

A.

In the garage.

Q. In the garage? A.

Yes.

Q. Whereabouts in the garage? A.

Just in the garage.

Q. Whereabouts? A.

On the floor of the garage.

Q. Whereabouts on the floor in the garage? A.

Right near the doorway.

Q. Which doorway? A.

The entry into the house.

Q. Where were those boots when the police searched your home? A.

They would have been there.5

Q. In the garage? A.

Yes.

Q. When you say they were near the door, do you mean the door that goes from the hallway into the garage?6 A.

Yes.

Q. (Witness shown exhibit EF.) I show you a plan of [XXXXXXXX] Street [Eagle Vale].

Q. You see the garage area? A.

Yes. [page 44]

Q. Would you mark with a green pen with a cross where it was that you say these boots were? A.

Well, I had my boot polish there and that’s where the boots were usually kept. I didn’t walk in the house with my work boots on.

Q. See, you have got them next to the cupboard in the garage, just next to the door, is that right? A.

That’s where they would be.

HIS HONOUR: You mean the door going into the house? CROWN PROSECUTOR: Yes, he has marked it right next to that door. (Above document marked by witness shown to the jury.) Q. Now Mr Milat, correct me if I am wrong, but is this your present position. You are not suggesting that the police have planted any of those items like gun parts on you, is that correct? A.

That’s correct.

Closing the gates 2.5

It was important for Tedeschi to confirm that the defence was not alleging that the police had planted any of the gun parts found or any of the victims’ property found in Milat’s house. During the presentation of the prosecution’s case, the defence had not put to any Crown witness that items had been planted by police and it was

never part of the defence case that the police had done so, but it was vital that Milat confirm this before asking the questions that follow. This is a good example of the importance of ‘closing the gates’ to any possible avenue of retreat by the witness. It is essential to ensure that the gates are indeed truly closed, for if there is the least opening a witness looking for a way out will almost always find it. The witness now has no option but to go where the cross-examiner expects him to, and he commits himself to the explanation that someone other than the police has come into his home (which had a burglar alarm system) without his knowledge, and planted a Ruger gun part in a place (his boot) where Milat would be likely to find it. This explanation sounds absurd — and this is not an unusual result when the gates have been properly closed. Tedeschi expands upon this basic proposition by extracting a similar explanation for numerous other pieces of incriminating evidence found in Milat’s house. The cumulative effect is devastating to the witness’s credibility. Q. And you are not suggesting that any of the camping equipment from the backpackers has been planted by the police, is that correct? A.

I’m not suggesting that, no.

Q. So what I say is correct — you are not suggesting that, are you? A.

No. [page 45]

Q. In fact, you are not suggesting that the police have planted any items at all either in your home or the home of your mother or your brothers, is that the case?

A.

I wouldn’t know what they’ve done.

Dealing with a vague answer 2.6

This vague, straying response by the witness requires the crossexaminer to demand a clear answer — which Tedeschi does in his next question. It is important to recognise this kind of response as and when it happens, so that it can be dealt with at once. The witness’s initial answer seems to be an attempt to have things ‘both ways’, which the cross-examiner cannot permit where the issue is one fundamental to the case.

Q. Well, is that the case, you are not suggesting that any of the items of camping equipment from the backpackers has been planted at any of the other homes, is that correct? A.

No, I’m not suggesting that.

Q. So is this what you are suggesting, that someone has come into your home and planted the Ruger receiver in your boot in the hall cupboard, is that right? A.

That’s right.

Q. Someone has come to your home and planted that item, an item of great relevance in this case, you agree? A.

Yes.

Q. An item that has been linked to the deaths of two of the backpackers, right? A.

Right.

Linking back 2.7

This question is an excellent example of ‘linking back’ an affirmative answer given by an accused, to the critical elements of the Crown’s case (the murder of the backpackers). The evidence had, by this point in the trial, established that the Ruger receiver7 had been painted with camouflage paint that was similar, in chemical composition, to camouflage paint on the Ruger trigger mechanism that had been found together with a Ruger bolt assembly, hidden in the wall cavity of Milat’s house — see Photos 3, 4 and 5. The ballistics evidence established that the bolt had been used in the rifle that fired the 10 cartridge cases found near Carolyn Clarke’s body and had also fired cartridges that had been found in Area A at the Neugebauer/Habschied crime scene in the Belanglo Forest.

[page 46] Q. Someone has come into your home and planted the receiver in a boot in the hall cupboard, a place where you would be likely to see it, that’s right, isn’t it? A.

That’s right.

Building 2.8

The long series of questions that follow in this next passage demonstrates ‘building’ upon the answers the cross-examiner is getting from the witness by asking simple questions taking the answers given to their logical conclusion, by which the advocate exposes the weakness of the explanation being given by the witness. Tedeschi’s simple questions are ones that, given the position Milat

has taken, he must answer in the affirmative. The weakness of the position is laid bare by the witness’s own answers to these simple questions. This is very effective advocacy. Q. Now that hall cupboard contained things that you regularly use, didn’t it? A.

Yes.

Q. Now when Chalinder Hughes travelled on your motor bike, did she use a helmet? A.

Yes.

Q. And where was that helmet kept? A.

Usually in the hallway cupboard.

Q. Were there other items in the hallway cupboard that you regularly used? A.

Not that I’m aware of.

Q. Well, we’ll come to that. You say that somebody has gone to the trouble of breaking into your home, is that right? A.

No.

Quick thinking 2.9

The cross-examiner here anticipates and picks up the distinction the witness is making between ‘breaking’ into the home and coming into the home. By this stage it has become apparent that Milat is endeavoring to suggest that the items were planted by someone who had access to his home, who did not need to ‘break’ in — suggestive

perhaps of a family member or a friend. Although Milat never suggests that this may have been another member of his family, the possibility becomes a major plank in the defence case to argue that there was a ‘reasonable doubt’ in the prosecution’s case — see the remarks of Milat’s counsel, Terry Martin, in his opening address to the jury, referred to in the chapter on the background to the case at 1.12. Q. Or getting into your home, is that right? A.

Yes. [page 47]

Q. Well, did you give anybody permission to come into your home and put things in your home? A.

No.

Q. So you say that somebody has come into your home without breaking in, is that right? A.

Yes.

Q. Without your permission? A.

Yes.

Q. Is that right? A.

Yes.

Q. Because you had a burglar alarm in your home? A.

Yes.

Q. Was there ever an occasion when your burglar alarm was set off when you were away from there? A.

Pardon?

Q. Did your burglar alarm ever get set off when you were not at home? Do you know of any person who set it off? A.

I’m not aware of that.

Q. So someone has come into your home, who knows you say — who knows your burglar alarm code, is that what you’re suggesting? A.

Yes.

Q. So you are suggesting that someone has come into your home and placed an object like this receiver in a very obvious place like your boot, right — is that right? A.

Yes.

Q. In an object like your boot, which you use perhaps every week, at the weekend? A.

Yes.

Q. In a place where you are going to see it immediately, if you open the cupboard, is that right? A.

It turns out you don’t see it immediately.

Q. But is that right, that somebody has placed it in a position where you would see it immediately if you opened the cupboard? A.

I walked around --

Q. Just answer my question. You say somebody has placed it in your

boot, in a hallway cupboard where, if you open up the hallway cupboard, you would see it immediately? A.

I’m not saying that. [page 48]

Maintaining control 2.10 The cross-examiner could tell from the three words ‘I walked around …’, beginning the witness’s answer, that he was not answering the question directly. He immediately brings the witness back to the question. Straying answers of this kind to an unambiguous question give the cross-examiner important clues that the witness is not keen to go into the topic being canvassed, and they flag areas that the cross-examiner might probe to good effect. Tedeschi does just that here. Q. All right. Well, had you used the boot you would certainly see it immediately, wouldn’t you? A.

Oh yes.

Q. So somebody has deposited it in a really obvious place, haven’t they? A.

Sounds like it.

Q. You’d use your boot? A.

Yes.

Q. Someone, you say, has also deposited the other Ruger parts in the

wall cavity, that’s what you say, isn’t it? A.

They must have.

Undermining 2.11 In the wall cavity of Milat’s house, accessible via the manhole into the roof space from the garage, police had found the bolt of the Ruger .22 rifle that ballistics evidence established had been used to murder Caroline Clarke and also fired the Winchester cartridge cases found in Area A at the Neugebauer/Habschied scene. Also found with it was the trigger mechanism and a ‘Ramline’ magazine capable of holding 50 rounds of .22 calibre ammunition and suitable for a Ruger rifle.8 This was very suggestive of a careful hiding rather than a ‘planting’ of evidence. But, having committed himself to his explanation that these must have been planted by a person or persons unknown, Milat must stick to the ‘planting’ theory. This becomes very difficult for him to maintain and Tedeschi’s persistent cross-examination following is withering in undermining and exposing the glaring weaknesses inherent in Milat’s explanation. Much of cross-examination is about undermining the position being maintained by the witness, and there are many examples where Tedeschi’s line of questioning is directed to this end. Q. Now would you agree with me, that’s a place that would be very, very hard for anyone to find? A.

I’m under the impression the police found it within ten minutes. [page 49]

Don’t be put off by a ‘smart’ or ‘clever’ answer 2.12 This answer by the witness looks like an attempt to suggest that it was easy for anyone to find the items hidden in the roof space, and thus it could hardly be said that they were hidden. An inexperienced cross-examiner might well feel temporarily stumped by such an answer and move on to another point. But here the experienced cross-examiner presses right on and repeats the question, effectively dismissing the witness’s previous answer for what it is — irrelevant to the point that there had obviously been a serious attempt to hide the items. Q. Do you agree that that is somewhere that would be very, very hard for someone to find? A.

No.

Q. Have you ever looked down your wall cavity? A.

Never have.

Q. Do other people who come to your home normally look down your wall cavity? A.

I don’t know.

Sarcasm 2.13 A touch of appropriate sarcasm here, and in the following questions, emphasises the incredibility of Milat’s responses here, and makes the point that the wall cavity is not readily accessible and that the locating of the gun parts there was far more likely to have been the result of an attempt to hide them, rather than ‘plant’ them.

Q. Has anybody ever come into your home and looked down your wall cavity? A.

I don’t know.

Q. You don’t know? A.

No.

Q. But you’re not 100 per cent sure? A.

I don’t know.

Multi-layered advocacy — here is a question which, by echoing other evidence in the case, also makes a subliminal submission to the jury 2.14 The phrase ‘I’m not 100 per cent sure’ was given as an answer to a number of questions asked of Richard Milat, Ivan’s brother, who was called to give evidence by the Crown earlier in the trial, and whom the prosecutor was given leave to cross-examine on certain matters. Such an answer may lack candor — even if the witness is 99.99 per cent sure, such an answer permits a witness simply to be avoidant of providing any help to the court on the subject matter of the question, [page 50] and the cross-examiner must not accept this kind of hedging. If the witness persists, it may damage their credibility significantly. By alluding to Richard Milat’s evidence in this question to Ivan Milat, Tedeschi in effect invites the jury to recall Richard’s testimony.

Q. Well, do your guests normally come into your home and look down your wall cavity?9 A.

My guests, no.

Q. Well, does your sister Shirley look down your wall cavity? A.

I don’t know.

Q. Do you think she does? A.

I don’t know.

Q. No idea? A.

No idea.

Q. No idea whether Shirley gets up there from time to time and says, ‘I think I’ll have a good time today. I think I’ll look down the wall cavity’. No idea whether she does that? A.

I wouldn’t have any idea what she does.

Q. But she might do it for entertainment? A.

Pardon?

Q. She might do it for entertainment — look down the wall cavity? A.

I wouldn’t have a clue what she does.

Q. See, I suggest to you that somebody has gone to a lot of trouble to try and hide those Ruger parts in the wall cavity, what do you say to that? A.

Well, yes, somebody has put them there.

Q. Somebody has gone to a lot of trouble to hide those Ruger parts in

that wall cavity, haven’t they? A.

I don’t know whether it’s a lot of trouble or not.

Breaking a question into its component parts 2.15 What follows now is a good example of the cross-examiner dealing with a vague response, just given, to a clear question that has a selfevident answer that the witness is not giving, by breaking the question into its component parts. Tedeschi does not simply accept this answer — he restates it immediately by breaking it into its component parts in the series of questions that follow, and establishes the answer, that was always self-evident, to the point that the witness must agree.

[page 51] Q. Well, somebody has climbed up into the roof space above the garage, right? A.

Yes.

Q. Somebody has come into your home, you say, right? A.

Yes.

Q. Somebody has switched off the alarm, right? A.

Yes.

Q. Somebody has gone up into the roof space and dropped those items down into the wall cavity — that’s what you say, isn’t it? A.

That seems to be the only way it could be done.

Q. Now you yourself went to a lot of trouble to hide a firearm in your back garden, didn’t you? A.

Well, it wasn’t a lot of trouble.

Reminding the witness (and the jury) of previous similar behaviour by the witness on another occasion that is in evidence, and timing 2.16 In his evidence-in-chief, Milat had confirmed that he had owned a Colt .45 pistol that he had kept buried in a container in his yard. He said that he had asked his sister Shirley to dispose of it for him. The police had not located this pistol in their search. The question effectively reminds the jury that Milat is a person who may ‘hide’ firearms, the inference clearly being that the jury might consider that he also hid the Ruger parts in the wall cavity. The interposing of this information in such an effective place within the line of questioning is a good example of the importance of the cross-examiner introducing material at the most effective point. The timing here is important and effectively done. Q. Well, you went to some trouble to make sure that you hid it well, didn’t you? A.

Yes, so it was out of the way.

Q. You hid it in a place where you thought the police wouldn’t find it? A.

I was never worried about the police finding it.

Q. You were never worried about the police finding it? A.

That’s right.

Q. Did you hide it there thinking that the police would never find it? A.

No. [page 52]

Forcing a ‘turnaround’ in the position taken by the witness by probing and confronting this position with other established evidence 2.17 Here Milat asserts that the reason he hid the Colt .45 pistol in the back yard was for security, and not to hide it from the police. Tedeschi then reminds Milat of the fact that there were other illegal guns in the house that were not hidden, and that presumably these posed a similar ‘security’ risk, yet Milat had not hidden these in the same way. Having had this inconsistency made apparent by the cross-examiner, when asked again why he had hidden the Colt pistol Milat admits that it was hidden because it was an illegal gun. This turnaround in the space of a few brief questions is very effective and telling. By this stage in the cross-examination, Milat finally indicates that he would go to considerable lengths to hide an illegal firearm. Q. Why did you hide it in the back yard? A.

It was the only secure place in the whole place.

Q. Did you hide it there because you thought that would be a place that the police wouldn’t find it? A.

No.

Q. Did you hide it there for the specific purpose of preventing the police finding it?

A.

No.

Q. When did you hide it there? A.

Virtually when I first come in there.

Q. When you first came into the house? A.

Yes.

Q. When was that? A.

End of — or middle of — around July, yes, something like that I moved in.

Q. 1992? A.

93.

Q. I’m sorry, 93? A.

Yes.

Q. See, you had a lot of guns in that house, didn’t you? A.

Yes.

Q. When you moved in? A.

Yes.

Q. SKK Rifles? A.

Yes. [page 53]

Q. A whole lot of illegal guns? A.

Yes.

Q. Right? A.

Yes.

Q. Hand guns? A.

Black powder pistol, yes.

Q. Yes, well, some of them were illegal? A.

Some were.

Q. And yet you say you chose to hide only the Colt 45 pistol in the back yard? A.

That’s right.

Q. Why did you only hide the Colt 45 pistol in the back garden? A.

That’s because it’s a pistol.

Q. Well, you had a black powder revolver, didn’t you?10 A.

Yes.

Q. You had the Browning, didn’t you? A.

Never had the Browning.

Q. We’ll come back to that, Mr Milat. You had a 38 pistol? A.

No.

Q. You certainly had the black powder revolver. You agree with that?

A.

Yes.

Q. Why did you hide only the Colt 45 pistol in the back garden? A.

I regarded that one as the only really illegal gun that I had.

Q. The only really illegal gun. Mr Milat, didn’t you move a whole lot of guns to your brother Walter’s place because they were illegal?11 A.

Not so much because they were illegal.

Q. Well, why? A.

Safekeeping. [page 54]

Q. Didn’t you tell this court that the main reason that you moved your guns to Walter’s place was that you had found out that the police were making enquiries about your guns? A.

Yes.

The importance of paying attention to the answers 2.18 This is a good demonstration of the importance of the crossexaminer closely following the evidence so as to be able to recall it whenever required — here Tedeschi is able to remind the witness of his previous evidence, in order to hold him to it. It is very important for the cross-examiner to pay attention and follow everything the witness is saying, and to recall it if required. Q. And you had some illegal guns there?

A.

Yes.

Q. Wasn’t that your main reason? Didn’t you tell this court that was your main reason? A.

That was one of the reasons.

Q. That was one of your reasons — that you had some illegal guns? A.

Yes.

Q. So were you concerned about the police finding those illegal guns? A.

Yes I was.

Q. So I ask you again. Why did you hide the Colt 45 pistol in your back garden — by burying it in your back garden and not worry about the other guns, the illegal guns that you had in the house? A.

Anyone could find them up in the roof.

Q. Yes, I ask you again. Why did you hide the Colt 45 pistol by burying it in your back yard while you had other illegal weapons in your ceiling? A.

Because the guns up in the ceiling — if anyone come into the house and they got into the ceiling, they’d see the guns there.

Knowing when to move on 2.19 By this stage the cross-examiner had already made ample headway in relation to the Colt .45 buried in the back yard. This return to the issue at this point was probably unnecessary. It is important to know when to ‘move on’ lest the witness is given further opportunity to recast their answers. Milat’s answer here is a non-sequitur that adds nothing, and Tedeschi appropriately now moves to another issue.

Q. That’s right. You weren’t concerned about them? A.

Not really. [page 55]

Q. The SKK, is that a sub-machine gun? A.

No

Q. It’s a semi-automatic? A.

Semi-automatic.

Q. You agree that you had a Ruger butt plate? A.

Yes.

Establishing the witness’s possession of incriminating evidence — Ruger 10/22 component parts 2.20 A butt plate suitable for a Ruger 10/22 rifle was found among the shelving in Milat’s garage.12 Obviously Tedeschi wanted to show that Milat had a connection with Ruger guns of any kind, particularly a 10/22 rifle. Given that the bolt that had been a component of the rifle that was used to shoot Caroline Clarke, and also to fire the Winchester .22 calibre cartridge cases located in Area A at the Neugebauer/Habschied murder site, was found hidden in Milat’s wall cavity, and that it was apparent that that rifle had been at least partly disassembled, finding other component parts of a Ruger 10/22 in Milat’s possession added strength to the proposition that he had possessed the entire rifle, and the butt plate may well have been

another part from the Ruger used at the Clarke/Walters and Neugebauer/Habschied crime scenes. Q. That was in your garage, was it? A.

That’s right.

Q. It was on a shelf in the garage? A.

That’s what they tell me.

Q. Well, you don’t dispute that, do you? A.

I thought it would have been in my bag with the other parts.

Q. You of course — you had a Ruger? A.

Mini 14.

Q. That had a butt plate on it? A.

Yes.

Q. You had another Ruger, the unused Ruger, as it has been called, or the new Ruger? A.

The 22? [page 56]

Establishing the witness’s familiarity with a key component of the crime 2.21 The Crown case was that a Ruger 10/22 rifle had been used to shoot Caroline Clarke and also at the Neugebauer/Habschied murder

scene. A new or unused Ruger 10/22 rifle, not the murder weapon, and still in its original box, was found among Milat’s property in the alcove at Walter’s house at Hilltop.13 The Crown case was that this was the same kind of gun as the murder weapon used at the Clarke/Walters and the Neugebauer/Habschied scenes and that this new Ruger belonged to Ivan Milat. He maintained that it was not his despite cogent evidence to the contrary including the fact that the owner’s manual for this gun was located among his papers at home14 and had written on its cover in Milat’s handwriting the date on which it had been purchased from the Horsley Park Gun Shop by someone using a licence belonging to a man named Pittaway, who was a friend of Milat. Pittaway was in New Zealand when the gun was purchased, so someone else had used his licence to purchase the gun. Q. Yes. A.

No, I never had that.

Q. That was found in your property in the alcove. You had it at some stage, didn’t you? A.

I never had it at all.

Q. Never had it at all. What use did you have for a butt plate for a Ruger? A.

Somebody has given it to me.

Q. If somebody had given it to you, you would have had to receive it, right? Firstly, who was it that gave it to you? A.

I couldn’t say.

Q. That’s very convenient, isn’t it, you can’t remember who gave it to you. OBJECTION TO COMMENT. HIS HONOUR: Yes, Mr Crown, I reject the comment.

Comments during questioning 2.22 A comment is not a question and comments should be kept for the address. Even the most experienced advocate can erroneously make a comment, and the cross-examiner, of course, must adhere to any intervention by the trial judge. Tedeschi is able here to appropriately convert the comment into a question, which is unobjectionable.

[page 57] CROWN PROSECUTOR: Q. It’s very easy for you to allege that you don’t remember the person who gave it to you, isn’t it? A.

I’ve got a lot of gun parts I wouldn’t know who give them to me.

Q. Do you remember anything about the person who gave you the Ruger butt plate that was found in your garage? A.

No.

Probing 2.23 Tedeschi is very effectively probing Milat for more information about the origin of the Ruger butt plate. None is forthcoming; Milat cannot say whether he obtained it from a man or a woman — apparently he does not want to say. Tedeschi’s questions are

designed to highlight this fact; for example, ‘Was it a male or a female?’ is such a simple matter to recall if the butt plate had been given to Milat by someone else. The Crown case was that the butt plate was probably once a component of the dismantled Ruger that had been used at the Clarke/Walters and the Neugebauer/Habschied scenes. Indeed, police found in Milat’s house every metal component part of a Ruger .22 rifle apart from the barrel and a spring; a wooden stock was never found.15 Q. Do you remember anything about him at all? A.

No.

Q. Was it a male or a female? A.

I don’t know.

Q. Was it someone at work or somewhere else? A.

Could have been.

Q. Do you remember when it was that you got the Ruger butt plate? A.

The only reason — because I’ve seen the butt plate there so I assume somebody give it to me.

Q. What about the barrel band, the broken barrel band? A.

I wouldn’t have no idea why I’d keep a broken barrel band.

Q. That was found in the Sarnia box in your bedroom, together with a lot of other items? A.

That’s what I’ve been told.

Q. You don’t dispute that’s where it was found do you?

A.

I could. [page 58]

Promptly reining in the witness to maintain momentum on an important issue 2.24 Milat here seems intent on disputing the damaging evidence of gun parts, and briefly appears to be about to do so. However, Tedeschi immediately deals with this by reminding the witness that the suggestion that someone would plant a broken barrel band in among a number of items in a box in a room in his house is most improbable.16 It can be very important at a moment like this for the cross-examiner to promptly rein the witness in, so that the line that the cross-examiner is developing is not interrupted. If a witness is permitted to stray, impact can be lost. After the careful buildup and effort that Tedeschi had gone through to reach this point, he could not permit the momentum to be broken or for the witness to take the initiative. Q. I’m sorry? A.

I could.

Q. You don’t suggest that it has been planted there by anyone, do you? A.

I’m not suggesting nothing.

Q. Are you suggesting that someone has come into your home and planted a broken Ruger barrel band in the fourth bedroom of your home?

A.

No, I’m not suggesting that.

Q. So how did it get into the fourth bedroom? How did it get into the Sarnia bag? A.

If I had it I’d imagine it would have been in one of the drawers of the dresser. That’s where I kept the gun parts.

Q. It was found in the Sarnia box in bedroom 4. You don’t dispute that, do you? A.

I have no idea where it was found.

Q. Well, the Sarnia box is shown in the photograph in folder 7 tab C photo 2 as being underneath the dresser in bedroom 4. See that? (Approached. Photograph shown to witness.) See the box under the dresser there in bedroom 4?17 A.

Yes.

Q. Is that your box? A.

Yes.

Q. And the stuff in that box is yours, isn’t it — the stuff in the Sarnia box was yours, wasn’t it? A.

I’d say, yes. [page 59]

Building on opportunities that arise 2.25 Having extracted the admission that the ‘Sarnia’ box and its contents were Milat’s, the cross-examiner immediately asks the question as to

how the broken Ruger barrel band came to be in the box — a question that Milat was clearly going to have trouble answering in view of his insistence that he did not know about any of the Ruger parts. This is a good example of building on opportunities that present themselves — a vital skill for cross-examination. Q. In fact, most of the stuff in that bedroom was yours? A.

Yes.

Q. Do you have any explanation to give to the ladies and gentlemen of the jury how a broken Ruger barrel band would come to be in your box of stuff in the fourth bedroom? A.

If I had a broken barrel band it would have been in the chest of drawers in my room. That’s where I keep all my gun parts.

‘Please explain to the jury’ 2.26 This is a very effective rhetorical device in advocacy, but should only ever be asked when the advocate knows for certain that there is no exculpatory explanation. It is a challenge to the witness and it immediately grabs the jury’s attention because the advocate is asking, on their behalf, for an explanation. In a subtle way, the advocate legitimately becomes a mouthpiece for the jury in asking questions, in the sense that the question being asked is one that the jury must be asking in their own minds. A good advocate always has this kind of ‘sympatico’ with the jury, almost like a sixth sense of being in tune with what they must be thinking at any given time. In part, this derives from the fact that the advocate chooses the theme, the order and the pace of the questioning and thus can build up a series of expectations in the jurors’ minds, and then deliver on those expectations by asking the appropriate consequential questions that

arise from the groundwork that the advocate has done by the line of questioning. This is the very essence of persuasive advocacy. But beware, many a good cross-examination has been setback by premature use of this technique, without sufficient groundwork and probing, such that the witness can, in fact, give a plausible explanation. In the present instance, the groundwork had been thoroughly done and Milat had no answer to offer. Q. Have you got any explanation to give to the jury why it came to be in the Sarnia box? A.

No. [page 60]

Insinuation 2.27 The cross-examiner is clearly insinuating that there is no other explanation other than that the barrel band was placed there by the witness. There are many examples of appropriate and effective insinuation throughout the cross-examination. Q. You know that the Browning pistol was found underneath your washing machine? A.

They tell me that, yes.

Laying the groundwork for a powerful rhetorical question 2.28 A Browning .32 calibre pistol, a magazine and cartridges, together with a leather pouch and holster, were located under the washing

machine in Milat’s laundry.18 This was a significant piece of evidence because it suggested a hurried attempt to hide it, not unlike the hurried attempt that, on the Crown case, was made by Milat to hide the Ruger receiver in the work boot in the hall cupboard. The Crown case was that Milat had indeed hidden these items in a hurry, in the minutes between when the arresting police first phoned him to tell him that his house was surrounded by police, and when he exited the house. Milat denied any knowledge of how this pistol came to be under his washing machine. He had his work cut out for him in this regard, because his former wife, Karen, had given evidence that he had at one time given her this gun, and that she had made a holster from leather provided by Milat. Also the gun was engraved with the letters ‘KGB’ and the evidence in the Crown case established that much of Milat’s property was engraved, sometimes in a ‘quirky’ way; for example, he agreed that he owned a black powder revolver that had been located in the Alcove at Walter Milat’s home, and this revolver was engraved with the name ‘Texas’.19 His former wife confirmed that Milat owned an engraving machine. Tedeschi capitalises well on this background evidence to press Milat for an explanation, and Milat again says that the Browning must have been planted. Tedeschi immediately exposes the absurdity of this with his rhetorical question, ‘Why would anyone want to plant this gun that had nothing to do with the Belanglo Forest murders?’. This groundwork also demonstrates the high degree of thought and analysis that the cross-examiner has given to his preparation and in his study of the evidentiary material, which makes such effective lines of questioning possible. Q. Did you put it there? A.

No.

[page 61] Q. Are you sure about that? A.

Positive.

Q. You have told this court that you hadn’t seen that Browning since 1987? A.

That’s right.

Q. So is this what you are suggesting, that quite apart from someone coming into your home and planting Ruger parts, right? A.

Yes.

Q. Ruger parts that are very closely connected to the Belanglo State Forest murders, right? A.

Right.

Q. Somebody has come into your home and placed the Browning pistol underneath your washing machine, right? A.

Right.

Q. You follow so far? A.

Yes.

Q. A firearm that has got nothing to do with the Belanglo State Forest murders, is that what you’re saying? A.

Well, you’re telling me --

Q. Is that what you’re telling the ladies and gentlemen of this jury, that

someone has come into your home and deposited Ruger parts in obvious places and unobvious places in your home, correct? A.

Yes.

Q. And someone has come in and deposited a Browning pistol under your washing machine, a pistol that has nothing to do with the Belanglo State Forest murders, right? A.

Right.

Q. Do you agree that that is what you are asking this jury to accept? A.

Something like that, yes.

Grabbing the attention of the jury 2.29 It is often effective to use the word ‘jury’ in a question; it immediately grabs their attention and punctuates or underscores the significance of the point being made — that is just simple, good communication. It is, however, important to do this sparingly and at appropriate times. The accomplished advocate will, of course, endeavor to keep the jury constantly interested and engaged. However, there are times when an extra cue is needed, such as here, to focus their attention on a significant point being made.

[page 62] Q. Now the same person — do you think the same person has deposited all those items, the Ruger items, all the Ruger parts that you claim to know nothing about, and the Browning pistol? A.

I don’t know.

Q. Would you have a look at exhibit GF. (Exhibit GF handed to witness.) (Approached.) That is the receiver found in your boot. You agree that it is your boot? A.

Yes.

Approaching the witness with a key exhibit — an occasion to be put to good use 2.30 This is a dramatic moment. Tedeschi knew this because he was placing into Milat’s hands the Ruger receiver20 that, on the Crown’s case, was a part of the gun used to murder Caroline Clarke and had been used at the Neugebauer/Habschied murder scene. This forceful and confronting use of exhibits can have tremendous impact and, if it can be followed through with a strong point, the effect is very powerful. Tedeschi did not waste this moment and introduced a line of evidence that he knew comprised compelling evidence in the Crown case. The Ruger receiver, which Milat asserted had been planted by someone, had camouflage paint on it (along one edge). A number of other items had been located that had also been painted in camouflage, including a paintball mask (found at Eagle Vale) and gun (found in a box in the alcove at Walter’s house).21 Also found in bedroom 4 of his house was a plastic model of a jet fighter that had been painted in camouflage by Milat, and tins of enamel paint in camouflage colours. The box containing Milat’s black powder revolver, located in the alcove at Walter Milat’s house, was also painted camouflage colours22 as was his SKK rifle found among the items stored in Walter’s alcove. Ivan Milat’s ownership of these other items was not in dispute. In addition, expert evidence had been called in the Crown case from a scientist, Mr Gothard, to the effect that he had tested the chemical composition of the three colours of camouflage paint on the receiver and bolt assembly with the paintball mask and paintball gun magazine that Milat had not

disputed were his, and they were essentially indistinguishable in colour and composition. In this series of questions and answers Milat admits to having painted a number of items camouflage, but denies having so painted the receiver — a stance that looked untenable in view of the many items he had painted camouflage. The clear implication was that the receiver was also Milat’s. Q. Found by the police in your boot. Somebody, you say has gone to the trouble not just to put this into your boot, but has also gone to the trouble of painting it a camouflage colour. That’s what you tell the court? A.

That’s what it looks like. [page 63]

Q. Did you paint th is camouflage colour? A.

No.

Q. Do you agree that it’s the same camouflage colours as a lot of items that you have painted? A.

I agree it’s camouflage.

Q. And do you agree that the camouflage colours that you have painted on a lot of other items are exactly the same as these colours? A.

No.

Questions where either a ‘yes’ or ‘no’ answer are helpful to the cross-examiner

2.31 Tedeschi knows that the camouflage paints are virtually indistinguishable — a ‘no’ answer from the witness will be seen for what it is — evasive and refusing to acknowledge the obvious. A ‘yes’ answer supports the proposition that the cross-examiner is seeking to establish. Whichever way the witness answers the question, it will assist the cross-examiner. Q. Well, you have painted your paintball gun camouflage? A.

Yes.

Q. You have painted your magazine of the paintball gun camouflage? A.

Yes.

Q. You have painted the paintball mask camouflage colours? A.

Yes.

Q. The same colours as this? A.

Camouflage, yes.

Q. Same camouflage colours as this, right — brown, green and khaki? A.

That’s camouflage colours, yes.

Q. And you have painted the very same three camouflage colours on a number of items at your home, haven’t you? A.

Yes.

Q. The very same camouflage colours? A.

Same colours, yes.

Q. So you say that someone has gone to the trouble of painting those very same camouflage colours on this Ruger receiver? A.

I’m not saying that. You are. [page 64]

Q. Well, do you agree that someone has gone to the trouble of painting some camouflage colours on this receiver? A.

Somebody has painted it.

Q. And do you agree that they are the very same camouflage colours that you have painted on a number of items at your home? A.

They look similar.

Q. They are the same, aren’t they? A.

They look similar.

Q. They are the same, aren’t they, the same colours? A.

You could say that twenty times. I’d still say it’s the same, what I’m saying.

Q. You have heard evidence of Mr Gothard, the scientist. They appear to be indistinguishable in colour? A.

I don’t recall that part.

Q. Do you dispute that the colours are indistinguishable on the number of items that you have painted camouflage colours? A.

I thought I read ‘similar’.

Q. Do you agree that you painted the paintball gun, the magazine, the mask, camouflage colours? A.

I agree.

Q. Do you agree that you painted the SKK rifle camouflage colours? A.

I agree.

Q. And do you agree that the camouflage indistinguishable from the colours on this receiver? A.

colours

are

They are the same colours.

Q. So do you say that it is sheer coincidence that the colours on this receiver are the same as the colours on your paintball gun and your SKK? A.

I’d imagine so.

Finishing a theme with a leading question that can have only one answer as all other possibilities have been ruled out 2.32 This question is a fine example of the cross-examiner’s right to ask leading questions; the question can only be answered in the affirmative because all other explanations have been ruled out by previous answers. The expression ‘sheer coincidence’ highlights the incredibility of the witness’s assertion and implicit in it is, in effect, an unspoken submission to the jury to the effect of ‘You don’t expect us to believe this do you?’. This question constitutes the denouement of what has been a telling line of cross-examination.

[page 65]

Q. So is this what you are asking the jury to accept — that someone has not only come into your home, switched off your alarm, come and deposited an item in your boot, gone up into your roof space and deposited Ruger parts in the wall cavity, but somebody has painted this receiver and indeed the trigger mechanism from the wall cavity, exhibit EV, has painted them the same camouflage colours as items that you have painted in camouflage colours, is that what you’re saying to th is court? Do you understand the question? A.

No, not really.

‘String of beads’ question 2.33 This question is a question which is designed to neatly summarise a number of matters that have been agreed to by the witness during the course of the cross-examination, then rolling them into a package and confronting the witness with the unlikelihood, indeed, the absurdity, that they would be present in combination. It is done extremely effectively here, and the reader will appreciate how much groundwork had to be carefully and painstakingly done to reach this point. Q. I show you the trigger mechanism that was found in the wall cavity, part of exhibit EV. Would you have a look at this. See that is painted camouflage colours? A.

Yes.

Q. Have a look at exhibit GF, the receiver, they appear to be painted the same camouflage colours? A.

Yes.

Q. Do you agree that those are camouflage colours that you have painted the SKK rifle, and the same colours? A.

Something similar, yes.

Q. The same three colours? A.

Yes.

Q. Green, brown and khaki, is that right? A.

Right.

Q. You have also painted the paintball gun the same colour. Do you agree the same colours? A.

I believe so.

Q. So what you ask this court to believe is this, that someone has not only come into your home, switched off your alarm, deposited the Ruger receiver in the boot, gone up into your ceiling space, deposited the trigger mechanism and the other parts of the Ruger into the wall cavity, but someone has gone to the trouble of painting them the same camouflage paints that you paint some of your other weapons, is that right? A.

You want me to agree to what you just said? [page 66]

Q. Is that what you are asking this court to believe? A.

No, I don’t know what they believe, whoever put that part in I don’t know how they did it.

Don’t answer a question from the witness 2.34 The cross-examiner asks the questions. Tedeschi correctly does not respond to the question but simply presses the witness for an answer. The witness appears to be having difficulty with these questions and this is usually a clue that the cross-examiner should continue to press the issue. Q. What you are suggesting someone has painted those items those colours, is that what you are asking the jury -A.

It’s not an uncommon thing for camouflage guns.

Q. You are saying it is sheer coincidence someone has painted them the same colours as you have? A.

I’ve seen numerous firearms painted camouflage.

Q. You are saying it’s sheer coincidence they are the same colours as your other guns and paintball gun that you have coloured camouflage? A.

I would agree with you there, yes.

Repetition 2.35 The repetition of the phrase ‘sheer coincidence’ in consecutive questions has a driving effect that emphasises the corner the witness has put himself in by his answers — there is an artistry in knowing when such repetitious verbal pummelling is appropriate — if badly or inappropriately done, it can do damage to the cross-examiner’s case and the cross-examiner will appear bullying, which he or she must never be. But if appropriately done, as it is here, it is forceful and effective advocacy that emphasises a critical point and the

weakness of the position taken by the witness. Q. Do you think it is sheer coincidence or do you think someone is trying to plant items on you? A.

Well, I never put them there.

Q. Do you think it is sheer coincidence? A.

In what?

Q. The camouflage colour, somebody has painted it camouflage? A.

I’ve seen guns before painted camouflage colours.

Q. You had some khaki paint in the fourth bedroom, a near empty jar? A.

I had paint in there, yes. [page 67]

Q. Do you recall Mr Gothard’s evidence that one of the colours on the Ruger parts, one of the camouflage colours was indistinguishable from one of the jars of paint you had, the near empty jar. Do you recall that evidence? A.

I never heard him use that word, no.

Q. Do you accept that you had a jar of paint that was indistinguishable from one of the colours on those Ruger parts? A.

I could have had one that was similar.

Q. Now you also had or the police also found exhibit FJ, a single fired cartridge case in a plastic bag in bedroom 4. You do not

dispute that, do you? A.

I can’t. I don’t know what they found in there.

Pressing and undermining 2.36 Police had located a fired Winchester .22 calibre cartridge case23 inside a plastic bag also containing .45 and .32 calibre ammunition, the bag being located in a cardboard box on the bed in bedroom 4 of Milat’s house. Inspector Prior, a ballistics expert called by the Crown, had given evidence that this cartridge had, in his opinion, been fired by the Ruger bolt found in the wall cavity. Tedeschi presses Milat in the expectation that Milat will have no choice but to adhere to his evidence that it too must have been planted by someone, as it couldn’t have been his (according to Milat). The imagined ‘planter’ has gone to bizarre lengths to make this evidence almost impossible to find — so much so as to seriously undermine the validity of the ‘planted evidence’ theory that Milat had committed himself to. Q. You heard evidence it was consistent with having been fired by the Ruger bolt found in your wall cavity? A.

I’ve heard that, yes.

Q. Did you put that single fired cartridge case into the fourth bedroom? A.

No.

Q. So what you say is this, is it, that somebody has not only gone to the trouble of putting the bolt into the boot, putting the Ruger parts into the wall cavity, but has also put a single fired cartridge case into the fourth bedroom. Is that what you say?

A.

No.

The reductio ad absurdum question 2.37 The cross-examiner has reached a point where the witness’s position is simply untenable and absurd. The question asks the witness to agree with the absurd proposition. Such a question powerfully anticipates and telegraphs to the jury a submission that will likely be made in the cross-examiner’s closing address.

[page 68] Q. How do you say that fired cartridge case got into your fourth bedroom? A.

I have no idea, I didn’t put it there.

Q. If you did not put it there somebody must have? A.

That’s correct.

Don’t take ‘no’ for an answer 2.38 When it is clear for all to see that the answer must be ‘yes’, the crossexaminer should not accept ‘no’ for an answer. The only exception would be if the cross-examiner wants to highlight the apparent lack of credibility of the witness, and submit in address that the witness would not acknowledge the obvious, and that you would not accept his or her version of events. Within two or three questions, the cross-examiner has turned the witness’s answer to ‘yes’.

Q. You are not suggesting the police have planted it, that is correct? A.

I’m not suggesting nothing.

Q. What you are suggesting someone has put it there, is that what you are saying, not the police, not you? A.

Somebody must have, yes.

Q. Is this what you are asking the jury to believe, somebody has come into your home and in effect planted all those items? A.

That’s — roughly somebody did that, yes.

Q. Somebody has deliberately planted all those items in your home, that is what you are asking the jury to accept, isn’t it? A.

That’s right.

Q. You acknowledge that you had a book called Select Fire 10/22? A.

Yes.

Insinuation 2.39 Select Fire 10/22 was a technical manual found by police on the bookshelf in Milat’s living room.24 It gave detailed instructions on how to convert a Ruger 10/22 rifle into a select fire weapon; that is, a fully automatic machine gun. This manual had Milat’s fingerprints on some pages. The obvious line of questioning was: ‘Why, unless you had a Ruger 10/22 rifle, would you have such a manual?’.

[page 69]

Q. Exhibit GK? A.

Yes.

Q. Exhibit GK is a book on how to convert a Ruger 10/22 into a machine gun, isn’t it? A.

Select Fire weapon, yes.

Q. Into a machine gun, a fully automatic machine gun? A.

Does it say that on the front?

Q. Well, isn’t that what this is all about? A.

Into Select Fire, yes.

Q. What does Select Fire mean? A.

You can change the mode of operation, how the gun works.

Q. You can make it fully automatic? A.

That’s right.

Q. From a semi-automatic to a fully automatic? A.

Yes.

Q. Fully automatic being whenever you pull the trigger it will keep on firing? A.

That’s correct.

Q. That is like a machine gun? A.

Yes.

Q. So this book is how to convert a Ruger 10/22, is that right? A.

Yes.

Q. Into a machine gun? A.

Into a Select Fire weapon.

Q. Into a fully automatic weapon, is that right? A.

Yes.

Q. It has got precise details about exactly where to put the holes, how to connect different things, precise details how to do it, is that right? A.

That’s correct.

Q. It’s about converting no other weapon but a Ruger 10/22, is that right? A.

That’s correct.

Q. I mean you could not use this book to convert any other weapon at all in the world other than a Ruger 10/22, is that right? A.

I don’t know. [page 70]

Q. Well, it has got precise measurements in it, hasn’t it, down to the thousandth of either an inch or centimetre, I am not sure which, is that right? A.

Yes.

The importance of the cross-examiner’s depth of knowledge of the evidence 2.40 This is well demonstrated in these questions about the Select Fire 10/22 manual — this comes through mastery of the brief and this is a moment where that comes to the fore. The questions could only be asked by an advocate in possession of a very detailed knowledge of the evidence. The fruit of such knowledge is apparent in this example where Tedeschi is able to immediately counter what appears to be Milat’s hedging ‘I don’t know’ answer with specifics that require the witness to answer the question in the affirmative, and the cross-examiner remains in control of the narrative. Never underestimate the importance of detailed knowledge of the evidence. Nothing is more valuable to the cross-examiner, and it will ensure a smooth flow of the cross-examination and vastly improve the advocate’s chances of remaining in control of the witness at all times. Q. So would not be any use to have this book except to convert a Ruger 10/22, is that right? A.

That’s right, yes.

Q. And this book has got your fingerprint on it? A.

They tell me, yes.

Q. Some of your fingerprints on it? A.

I imagine should have been on every page.

Q. Would you tell us where you got this book from? A.

I remember I bought it at one of the gun shows I’ve visited.

Q. A gun show? A.

Yes.

Q. Which gun show was that? A.

I’m not sure if down at, where they hold the Easter Show, or the one at Homebush.

Q. And when was it? A.

From 90 onwards.

Q. Sorry? A.

From 1990 onwards, something like that I would have got it.

Q. Around 1990? A.

Onwards, yes.

Q. Or onwards? A.

I could have got it in 1992, I’m not sure. [page 71]

Q. In 1990 you were interested enough in converting a Ruger 10/22 that you got this book? OBJECTION. A.

No I was not.

QUESTION REPHRASED.

Q. In 1990 or onwards you were interested enough in the conversion of a Ruger 10/22 to a fully automatic to buy this publication? A.

I bought a couple of other magazines that same day.

Q. Just answer my question. Is this the case, you were interested enough in converting a Ruger 10/22 in order to buy this publication? A.

No.

‘Just answer my question’ 2.41 This is a simple yet important technique to stop the witness from straying. Q. You did not buy it to convert any other weapon? A.

I didn’t buy it to convert anything.

Statement or assertion in the form of a question 2.42 Having had the witness finally agree that the manual was for the specific purpose of converting a Ruger 10/22 into a fully automatic weapon, the next question, which is also an assertion, contains the properly drawn and obvious inference: why would he buy such a Ruger-specific conversion manual unless he had a Ruger 10/22? Q. You bought this because you were interested in converting a Ruger 10/22? A.

I brought it because I was interested how it was done.

Q. You were interested in how the conversion of a Ruger 10/22 was

done, weren’t you? A.

Yes.

Q. And that is because you had a Ruger 10/22? A.

No I didn’t.

The ‘focusing’ or ‘flag-planting’ question 2.43 This question focuses once more on (and is a reminder ‘flag’ to the jury of) one of the critical issues the prosecution wished to prove — that Milat possessed a Ruger 10/22 rifle. Milat’s denial does not sit well with the evidence that the cross-examiner [page 72] has, by this point, well and truly established; namely, Milat’s possession of so many parts from a Ruger 10/22 and items specific to the conversion of such a gun into an automatic weapon. This technique of flagging important issues at appropriate opportunities such as this keeps the jury focused on the critical factual issues. In the face of such strong evidence about the Ruger, any way the witness answers this question will be helpful to the cross-examiner — if he agrees, then the cross-examiner’s point is accepted; if he disagrees, his credibility is severely damaged in the face of such strong evidence, as he is denying the conclusion that the evidence overwhelmingly points to. An inexperienced cross-examiner may feel disappointed with such an answer, but it is important to appreciate that a denial of the obvious can be a helpful answer for the cross-examiner.

Q. Do you remember how much you paid for it? A.

8 or 9 dollars.

Q. You also had in your home a manual for a Ruger 10/22, didn’t you? A.

Yes.

The ‘building’ question 2.44 If the cross-examiner has several distinct pieces of evidence (building blocks) all pointing to a particular fact to be established, it is important to build one upon the other in a logical order. The fact to be established here is that Milat had a Ruger 10/22 rifle. The evidence pointing to this fact included Milat’s possession of Ruger 10/22 specific items such as the Select Fire 10/22 manual and a Ruger 10/22 owner’s manual found in bedroom 4. Having dealt fully with one, Tedeschi moves inexorably on to the other. (The Crown Prosecutor asked to be handed exhibit P.) Q. While that is being obtained, in relation to the conversion of a Ruger 10/22, do you agree that a Ramline magazine such as this one, which is part of exhibit EV from the wall cavity,25 a Ramline magazine would be much better than the standard 10 shot magazine that comes with a Ruger rifle? A.

Agree to what?

Maintaining pace 2.45 Note how the cross-examiner maintains the pace of questioning — rather than waiting for the exhibit to be retrieved and thus creating a

lull, Tedeschi uses the time to ask a related question. Pace is important at certain points, such as here, to maintain the momentum of the cross-examination.

[page 73] Q. Do you agree that if a person, if any person was going to convert a Ruger 10/22 rifle to automatic, it would be much better to use a Ramline magazine like th is one than it would be to use the standard magazine, the 10 shot magazine that comes with a Ruger rifle?26 A.

I don’t know.

Q. Oh, Mr Milat. If you are going to convert a Ruger 10/22 to automatic, fully automatic, it is better to have a 50 round magazine than a 10 round one, isn’t it? A.

How would I know?

Q. Oh, Mr Milat. If a person is going to convert a weapon to fully automatic, wouldn’t it be better to have a 50 round magazine than a 10 round magazine, do you agree with that? A.

I don’t know what you want me to agree with.

The exasperated ‘Oh!’ 2.46 This should be used sparingly so as not to lose its obvious impact, which is to invite the jury to join in the advocate’s exasperation and disbelief at the incredibility of the answer given by the witness. Used sparingly, as here, it has a powerful appeal. If over-used it may seem belittling which, more often than not, is inappropriate and is apt to

invite the jury’s sympathy for the witness. An advocate must never abuse their position and their privilege of being entitled to question witnesses on oath. Never get personal. Sarcasm may occasionally be appropriate, although it must be used sparingly.

The ‘win/win’ question 2.47 Whatever way the witness answers this last question will be helpful to the cross-examiner, because the correct answer is obvious to everyone in court. If the witness gives that answer, it is helpful to the cross-examiner. If he does not, his credibility is seriously in question. This kind of question can be used when the inference to be drawn from the evidence is overwhelmingly obvious. Q. Do you agree that if you are going to convert a Ruger 10/22 to fully automatic it would be better to have one of these 50 shot Ramline magazines than a 10 shot, do you agree with that? A.

It all depends on the person.

Q. Well, if you had on it a 10 shot magazine, the first time you would fire it it would probably use up most of the magazine? A.

I don’t know how they operate. [page 74]

Q. Do you think it would be better with a fully automatic weapon to have a 50 round magazine than a 10 round magazine? A.

I wouldn’t know.

Exposing the witness’s lack of credibility by asking a simple question with an obvious answer 2.48 This question was likely asked in the expectation that the witness would avoid conceding the obvious answer to the question (which is exactly what happens). The cross-examiner underscored the point by asking the question several more times, receiving a similar reply. Q. No idea? A.

No idea.

Q. You honestly tell this court you haven’t the vaguest idea whether a 50 shot magazine would be more suitable for any automatic weapon than 10 shot magazine? A.

I don’t know whether it’s more suitable or not.

Q. Would it be more suitable to use a fully automatic weapon with a 50 shot magazine than a 10 shot magazine? A.

I’ve never used a fully automatic weapon.

Q. Do you think it might be more suitable to use it or not? A.

If you start thinking about it, you could think like that, yes.

Q. I see, but you of course have never thought like that? A.

I have never had a Ruger --

Q. Have you ever thought about converting any weapon to fully automatic? A.

I have thought about it, yes.

Q. So have you thought about whether it would be better to have a 50 shot magazine than a 10 shot magazine? A.

No.

Q. Never thought about it? A.

No.

Q. Now you have seen the instruction manual for the Ruger? A.

Yes.

Q. Exhibit P, you have seen that, haven’t you? (Exhibit P handed to witness.) A.

I have seen it, yes. [page 75]

Q. You agree that the 4 4 92 is your handwriting?27 A.

I don’t agree but I possibly saw this — I don’t recall doing it. That’s all I’m saying. I could have done it.

Q. Do you agree that it is definitely your handwriting? A.

Well, I wouldn’t know. I don’t remember doing it. That’s about it.

Persistence 2.49 Persistence is an important quality for a cross-examiner. The answer to the question, in light of all the evidence, is obvious, but the witness does not immediately concede the answer and this is likely to damage his credibility. The cross-examiner persists by asking the

identical question no fewer than three times in a row, and eventually the witness reluctantly concedes the possibility that it may be his handwriting. The witness’s hedging has exposed an apparent lack of credibility, and the cross-examiner has also finally been given something close, at this point, to the admission that he is after. This is a telling passage of evidence. Q. Do you agree that it is definitely your handwriting? A.

I agree that that book was found in my room.

Q. Do you agree it is definitely your handwriting? A.

No.

Q. You don’t? A.

But it probably is.

Q. Do you have a habit of writing on things the date when you got them? A.

Pardon?

Q. Do you have a habit of writing on things the date when you got them? A.

Certain things, yes.

Q. Like manuals? A.

Possibly, sometimes I do.

Q. Firearm accessories? A.

I don’t know what you mean there.

[page 76] Q. Just generally, firearm accessories? A.

No. I could, but I’m not sure what --

Q. Ammunition? A.

Write the dates on ammunition?

Q. Yes. A.

On ammunition or the boxes, you’re talking about?

Q. Well, on any sort of ammunition? A.

Sometimes on the cases I might write when I bought it.

Q. See, it’s your habit, isn’t it, that some things that you buy you write the date on? A.

I wouldn’t say it’s a habit.

Q. Well, is it something that you sometimes do? A.

Sometimes, yes.

Q. Is this the case, that when you write the date on things you don’t put a stroke between the day and the month and the year or a dot — you just write the number like this? A.

Sometimes I do, sometimes I don’t.

Q. But sometimes you write the date without writing any strokes or dots at all? A.

That’s right.

Q. That’s unusual, isn’t it? A.

For me?

Q. No. Have you ever seen anybody else do that? A.

I wouldn’t have a clue what you do.

Q. Have you ever seen anybody else doing that? A.

No, I never took any notice actually.

Q. Would you have a look please at folder 7 tab B photo 10. (Shown to witness.) (Approached.) I show you a photograph. See there are a lot of items concerning your black powder revolver? A.

It’s a black rifle.

Confronting the witness with an exhibit28 2.50 Here Tedeschi shows Milat a photograph of a number of items (for use with his black powder revolver) found on a shelf in a wardrobe in bedroom 3 at the Eagle Vale house, in order to demonstrate Milat’s unusual way of writing dates on items. [page 77] The purpose of this is to establish that Milat has also written the date on the Ruger manual, which he appears to be so reluctant to concede. By taking the witness step-by-step through what obviously appears in Photo 38, Tedeschi finally obtains the concession from the witness. This is a fine example of simple confrontation by use of an exhibit.

Q. Are those items that come from the shelf in the built-in cupboard in your bedroom, bedroom 3? A.

Yes.

Q. And can you see the top — on the top there are some percussion caps. They have got 26 9 92 on them. Can you see that? A.

Yes.

Q. No dots, no strokes, that’s right? A.

That’s right.

Q. Then down the bottom left there’s another item that has got a number on it? A.

That’s right.

Q. Can you tell us what that number is? A.

9 12 91.

Asking the witness to read out loud from an exhibit 2.51 Asking the witness to read out loud damaging evidence or contents from an undisputed but important exhibit, particularly if the witness is the author of the writing, is a very effective way of presenting such evidence because the witness becomes an active participant in the presentation of the case against him. Tedeschi has employed this technique frequently and effectively in his cross-examination of Milat. This technique has a dramatic impact on the jury and it confronts the witness with the truth, and can be agitating to the untruthful witness. The technique also reminds the witness, and everyone in court, that the cross-examiner is in control of this part of the proceedings, and this keeps a would-be difficult witness from

straying from the topic of the questioning. Q. And do both of those appear to be dates? A.

I’d say they are.

Q. Both of them haven’t got any dots or strokes or anything like that? A.

That’s right.

Q. That’s your way of writing dates, isn’t it? A.

Sometimes, yes. [page 78]

Q. Having seen that, are you more confident that it is your handwriting on this Ruger manual? A.

That’s got 4 4 92 on it. That’s — I’m saying that’s my manual. I’m just saying I can’t recall putting the writing on, that’s all.

Q. You agree it is your writing, do you? A.

Most probably is. (Legal discussion in the absence of the jury)

LUNCHEON ADJOURNMENT IN THE PRESENCE OF THE JURY CROWN PROSECUTOR: Q. Mr Milat, I show you exhibit GK, which is the Select Fire 10/22 book about converting a Ruger 10/22 to fully automatic.29 Could you go to the page that I have opened there, which

is the last part of the foreword. (Shown.) Do you see the last paragraph there? I’d like to read it to you. ‘There is a 50 round magazine available that with some modifications and testing can be made 98 to 99 per cent reliable and that’s pretty good odds’. Do you remember reading that part of the Select Fire 10/22 book when you pored over it and put your fingerprint on every page? A.

No.

Incorporating into the question a previous admission of the witness 2.52 Milat had previously given evidence that he imagined his fingerprints would be on every page of the Select Fire 10/22 manual. Reminding the witness (and the jury) of this, by this form of question, strengthens the impact and force of the question. Q. You don’t remember reading it? A.

No. I could of but.

Q. But somebody you say has not only deposited Ruger parts in your wall cavity by getting up through your manhole, but has in fact deposited a 50 round magazine — the kind described in this book, is that right? A.

It sounds like that, yes.

Linking, building and echoing 2.53 The 50 round magazine was also found in the wall cavity, in close proximity to the Ruger trigger mechanism.30 Having linked Milat

with the Select Fire 10/22 manual for converting a Ruger 10/22 into a fully automatic machine gun, and having identified a 50-round magazine, such as the one found, as being recommended [page 79] for such a conversion, Tedeschi’s question links back to, and echoes, the important questions he has asked previously about Milat’s assertion that the gun parts were planted by someone else. Milat’s ‘planting’ theory seems more and more absurd when linked to the evidence that Milat had purchased the manual to convert a Ruger 10/22 into a fully automatic weapon, and that the manual recommended the use of a 50-shot magazine of the kind found in the roof space. Q. The Ruger manual, you have admitted to the court that it’s yours?31 A.

Pardon?

Q. You have admitted to the court that the Ruger magazine is yours — I’m sorry, the Ruger manual is yours? A.

Yes.

Q. Exhibit P? A.

Yes.

Q. And in fact it was contained within a book on the dresser in the fourth bedroom, the book being called ‘Bituminous Surfacing, Volume 2, Asphalt Work’. A.

It was. I thought it was the other — I had two books. One was a

red-covered one and I thought it was in that one, but it could have been in that one. Q. This is a book of yours, this Bituminous Surfacing book? A.

Yes.

Q. You are the only person in your family who is working in the bituminous surfacing area? A.

Yes.

Q. Is that right? A.

Yes.

Q. This manual, I think you have acknowledged — and correct me if I am wrong — but you acknowledge that this handwriting 4 4 92 is yours, is that right? A.

Yes.

Q. Mr Milat, if the manual is yours then the Ruger was yours, wasn’t it? A.

No.

The ‘climax’ question 2.54 This very simple question represents the climax of the line of questioning about the Ruger manual. The question distills in a few words the essential conclusion that arises from all of the preceding answers Milat has given about it. It is [page 80]

important for a cross-examiner to ask such ‘climax’ questions. They act as pithy, clear summaries for the jury of important points. Such questions can often be identified by the fact that they might just as easily have been asked as a rhetorical question by the advocate in their closing address to the jury, and often are. It is always an effective technique to echo back to such a well-flagged point in the evidence when the time comes for the closing address. Q. Why on earth would you have a manual for a Ruger 10/22 rifle if you didn’t have a Ruger 10/22 rifle? A.

I’ve had lots of gun manuals.

Q. Well, who gave you this manual? A.

I assume Wally did.

Q. Wally did? A.

Yes.

Q. Why on earth would Walter give you a manual for a Ruger 10/22? A.

So I could read about it, I suppose.

Q. If it was just to read about it — you wrote the date of purchase on it, didn’t you? A.

I’m accepting I did.

Q. And you say that it’s yours? A.

It is now, yes.

Q. Well why on earth would someone give you a manual to keep and

why would you write the date of purchase on it unless you own the rifle? A.

I’ve got a lot of books but I don’t own the products.

Pressing the witness 2.55 The cross-examiner here, and in the several questions that follow, presses the witness for an answer to a question that Milat appears to demonstrate discomfort with. When a witness appears to be avoidant, it should set bells ringing for the cross-examiner that they have hit upon a real problem area for the witness, and the best course is usually to persist, as Tedeschi does here, and to probe and keep pressing for an answer. If the witness continues to be evasive, it requires firm handling on the part of the cross-examiner, and Tedeschi’s chastening ‘Just answer the question’ is fully justified here. See how the witness makes several more attempts at avoiding the question, until finally he admits that he can’t answer it. Tedeschi says: ‘Thank you’, signifying appropriate mock gratitude that the witness has at last admitted what was plain from the outset. Tedeschi’s repeated use of ‘Can you think of a single reason …?’ is effective and confident in the knowledge that none is likely to be forthcoming. As a question, it comes close [page 81] to a rhetorical one, and the witness’s inability to offer any reason presses home the salient point that the strong implication is that the gun had been purchased by Milat, despite his denials to the contrary. Q. Just answer the question. Why would someone give you a manual

and why would you write the date of purchase on it unless it was your rifle? A.

I can’t answer that. I’ve got the book but I haven’t got the gun.

‘Just answer the question’ 2.56 Maintaining control in response to a largely non-responsive answer, the cross-examiner repeats the question and insists on an answer. Q. Can you think of any reason why someone would give you a Ruger 10/22 manual and why you would write the purchase date on it unless the Ruger 10/22 rifle was yours? A.

I can’t give any reason.

‘Can you think of any reason why …?’ 2.57 This very confident question is used for emphasis of an important point, but only when the cross-examiner is certain that there can be no plausible reason. This technique should not be used if there may be a plausible reason. In this instance it is properly used, and Milat’s response is that he cannot give any reason. This is a telling moment. Q. Can’t think of one single reason why that would happen, unless the Ruger was yours? A.

Because I’ve got the manual you think the rifle is mine?

The cross-examiner is not there to answer questions from the witness 2.58 The cross-examiner is not giving evidence and should never answer

such a question from a witness. It is the cross-examiner who is entitled to ask questions, not the witness, and Tedeschi appropriately refuses to respond, and continues with the questioning. Persistence is required here and yields results when the witness eventually concedes that he cannot answer the question. Q. No. Just answer my question. Can you think of one single reason? A.

Why he give me the manual? [page 82]

Q. Can you think of one single reason why someone would give you a manual and you would write the date of purchase on it other than if the rifle was yours? A.

The rifle isn’t mine.

Q. Just answer my question please. Can you think of one reason? A.

Of what?

Q. Can you think of one reason why someone would give you this manual and you would put the date of purchase on it other than if the Ruger 10/22 was yours? Can you think of one other reason? A.

The only reason I would probably write a date on that would be so I know what year it was, what year the gun is.

Q. Why would you write the date of purchase on this book and be given a book, so that the book is yours -A.

Well, what’s wrong with it?

Q. -- unless the rifle was yours? A.

The rifle isn’t mine.

Q. Unless the rifle was yours, Mr Milat, why? A.

I got the book, all right? I haven’t got the rifle.

Q. Why would someone give you this book so that it’s your book, unless the rifle was yours? A.

He give me the book.

Q. No, just answer my question please? A.

I can’t answer it.

Q. Thank you. I suggest to you that you did have the new — or it has sometimes been called the unused Ruger 10/22 rifle? A.

No I didn’t.

The rule in Browne v Dunn 2.59 This and the following question are tradesman-like questions to finish off the line of cross-examination about the Ruger 10/22 and to formally put to the witness that he had possession of the new/unused Ruger, to comply with the rule in Browne v Dunn (1893) 6 R 67 (HL). That rule is a rule of fairness which Hunt J (as he then was) described in Allied Pastoral Holdings P/L v Commissioner of Taxation [1983] 1 NSWLR 1 at p 16 as follows: It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matter, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon

[page 83] inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the inference sought to be drawn.

Q. I suggest to you that you moved it amongst the other weapons that were moved from your place to Walter’s place? A.

Definitely not.

CROWN PROSECUTOR: Q. (Approached) I show you the paint ball gun, exhibit HG (shown). Would you look at the magazine of that gun? A.

You haven’t got the magazine there.

Probing relevant issues that the witness is unexpectedly uncomfortable about conceding 2.60 The paintball gun and face mask32 were items Milat conceded were his. They had both been painted by him in camouflage colours indistinguishable from those on the Ruger receiver found in his work boot in the hall cupboard. They had also been engraved — the paintball gun with the nickname ‘Texas’ which Milat’s former wife had testified was one of Milat’s nicknames, and the mask with the initials ‘IM’ as well as the name ‘Texas’ and the word ‘die’ among other engraved scribblings. Tedeschi was expecting Milat to admit to having done all the engraving on these and other items such as the Browning pistol and his black powder revolver (the butt of the revolver also had the name ‘Texas’ engraved on it).33 But Milat would not admit to engraving anything on the mask — not even his own initials that were clearly visible upon it — or the Browning

pistol on which the initials ‘KGB’ had been engraved. Tedeschi seized the opportunity that this incongruous denial gave rise to, and what follows is one of the most telling and dramatic exchanges in the entire cross-examination. Tedeschi concluded the line of questions with a rare, but entirely appropriate, use of sarcasm in his questioning. Q. The gas cylinder. A.

Yes.

Q. Is that the gas cylinder? (Indicated) A.

Yes.

Q. Incidentally, what is this gun used for? A.

The paint ball gun? [page 84]

Q. Yes, what is it used for, it is for skirmishing? A.

That’s right.

Q. Would you have a look at the receiver, exhibit GF. (Shown). Do you see the colours — I ask you to compare the colours on the magazine with the colours on the paint ball gun. You have not denied you put the colours on the paint ball gun? A.

Yes.

Q. Would you compare now the colours on the receiver and the colours on the paint ball gun. Do you agree each has three

colours? A.

Yes.

Q. Do you agree that the three colours are indistinguishable, that is, unable to be told apart? A.

Similar, yes.

Q. More than similar, indistinguishable? A.

No, I don’t agree to that.

A reluctant partial concession when a complete one is obviously warranted 2.61 The witness’s concession that the camouflage colours are ‘similar’ is an incomplete answer to the question that they were ‘indistinguishable’. This is not necessarily unfavorable for the crossexaminer, as it demonstrates the witness’s reluctance to acknowledge the obvious. Q. You agree to that? A.

I agree they are very similar.

Q. You disagree they are indistinguishable, is that right? A.

Yes.

Q. Can you see the word ‘Texas’ engraved on the paint ball gun? Do you see that? A.

Yes.

Q. Do you see the way it is engraved with a series of dots?

A.

Yes.

Q. You can see the way that the dots are joined up to make a letter? A.

I don’t know whether the dots join but I can see ‘Texas’ written there.

Q. Each of them is a series of dots, right? A.

You are saying that, yes.

Q. Have a look — you engraved that, didn’t you? A.

Yes, but I didn’t put it in dots. [page 85]

Q. Did you engrave with a percussion engraver? A.

With an engraver, yes.

Q. That basically goes up and down? A.

No, it doesn’t.

Q. Can you describe what sort of engraver you used? A.

The police had it. They should be able to have it here. It is just a little --

Q. The police are not in the witness box, Mr Milat. You tell the court how the engraver works. A.

You turn it on, hold it down and it goes ‘brrr’ and you write away.

Q. Have a look at the writing ‘KGB’ on the Browning pistol.

(Shown).34 Do you agree it is the same sort of writing as ‘Texas’ on the paint ball gun? (Shown) Just there above my thumb. A.

Here?

Q. Yes. A.

I see, yes, some scratches there. I couldn’t tell you what it is.

Q. Can you see ‘KGB’ there? A.

No.

Q. You cannot see it at all? A.

I can see scratches there but I can’t see ‘KGB’.

Q. Have you ever heard of the CIA? A.

Yes.

Q. What is the CIA? A.

I have heard it — it is an American secret service organisation.

Q. An American spy organisation is it? A.

Spy, secret service.

Q. Have you heard of ASIO? A.

Yes.

Q. Do you know what ASIO is? A.

Australian secret service.

Q. Have you ever heard of the KGB?

A.

Yes. [page 86]

Q. What is the KGB? A.

It is the Russian secret service.

Q. Did you engrave ‘KGB’ on any of your belongings? A.

No.

Q. I suggest to you, you have engraved ‘KGB’ on your Browning pistol? A.

No, when my solicitor pointed that out to me I thought it was Karen’s name.

Q. You know it isn’t. A.

I don’t know that.

Question conveying disbelief of the answer given 2.62 This forceful form of question in the form of a statement emphatically conveys to the witness and the jury that the answer is not acceptable, and by implication invites the witness to retract his answer. Within a few more questions the witness’s position has turned completely to accepting that the answer was wrong. Q. You know they are not her initials? A.

[Answer struck out.]

Q. You know they are not her initials, don’t you? A.

No, I don’t.

(Crown Prosecutor granted access to paint ball face mask, exhibit FP.) CROWN PROSECUTOR: Q. Do you remember what Karen’s middle name is? A.

[name stated]

Q. It is not a name that begins with the letter ‘G’, is it? A.

No.

Q. You have always known her first name was Karen and her second name was [stated name]? A.

I thought it may have been one of the children, I don’t know. I am only assuming that — you are asking me what ‘KGB’ stands for.

Q. It doesn’t stand for any of Karen’s names, does it — does it, does it? A.

What’s that?

Q. It does not stand for any of Karen’s names, does it? A.

Not her name, no.

Q. (Approached) Would you have a look please at this face mask (shown). You engraved that face mask? A.

This here? [page 87]

Q. Yes — no, all the engraving on that. A.

No.

Q. It is your face mask though, isn’t it? A.

It looks like one, yes.

Q. What have you engraved on it? A.

I don’t think I engraved nothing.

Q. That is an ‘IM’ symbol, do you agree with that? (Indicated)35 A.

Yes, I agree it is there.

Q. Have you done this engraving? A.

No.

Q. What, someone has broken into your home and engraved your name on your paint ball mask? A.

I don’t know. Anyone could have done it.

Q. There is the ‘IM’ symbol with an I superimposed on the M? A.

Yes.

Q. Did you do that? A.

No.

Q. Who do you think might have done that? A.

Could have been anybody.

Q. There is the word ‘Texas’, have you done that?

A.

No, I don’t remember putting it on this at all.

Q. Somebody else has written ‘Texas’ on it? A.

Looks like it.

Q. Do you have any idea who? A.

I don’t know.

Q. Any idea? A.

Well, I suppose whoever could have found it, I don’t know.

Q. Do you think someone has come into your home and planted that? A.

No, this was already in my home. [page 88]

Q. Do you think somebody has come into your home and engraved it in your home? A.

That’s what I think, yes.

Undermining by logical extrapolation to demonstrate the absurdity of the answer 2.63 This question is a good example of extrapolating the logical inference that flows from the witness’s answer; if the answer is absurd, then any logical extrapolation from it is also likely to be absurd, and perhaps even more so, thereby emphasising the improbability of the correctness of the original answer. This is a technique frequently used in this cross-examination. Here Milat’s answer (that someone has come into his home and engraved things

on his paintball mask) is simply unbelievable. Q. You think somebody has brought an engraver into your home -A.

I had an engraver at home.

Q. Do you think someone has come into your home, used your engraver and engraved this mask of yours? A.

That’s what I think, yes.

An absurd answer can be very helpful to the cross-examiner 2.64 This answer is helpful to the cross-examiner because it is absurd. It demonstrates an absence of credibility on this issue on the part of the witness. Q. There is the word ‘die’? A.

Yes, I noticed that.

Q. There is a skull and a cross bone? A.

Yes.

Q. Did you do this? A.

No.

Q. Are you sure? A.

Positive.

Q. Quite sure? A.

Positive.

Q. Do you think somebody has come into your home and used your engraver to engrave those things on your face mask? A.

Yes.

Q. You have engraved ‘Texas’ on some things, haven’t you? A.

That’s right. (Crown Prosecutor granted access to black powder revolver.) [page 89]

Q. Perhaps have a look at the bottom of this black powder revolver (shown). Do you see the word ‘Texas’ there? A.

Yes.

Confronting the witness by asking him to compare undisputed items with items in dispute 2.65 There was evidence at the trial that ‘Texas’ was one of Milat’s nicknames. By asking this question (to which the cross-examiner knew the answer) Tedeschi establishes that Milat used the engraver on various items and had also engraved the name ‘Texas’ on his black powder revolver.36 Nevertheless, Milat denied that he engraved anything, including the initials ‘IM’ (his own initials) or his nickname ‘Texas’ on his paintball mask. Tedeschi then shows the witness both items and asks him pertinent questions of comparisons between them. Q. Did you engrave that? A.

Yes.

Q. On each side there is the word ‘Texas’. A.

Yes.

Q. What I would like you to do is have a look at the letters — the way in which the letters are engraved, particularly the ‘X’ and the ‘S’, in fact all the letters, and tell us if they appear to be done in exactly the same way in the word ‘Texas’ — do the letters appear to be done in exactly the same way? A.

They both say ‘Texas’.

Q. Is the ‘T’ written the same way? A.

No.

Q. Different, are they? A.

Yes, come and have a look. Get a load of the ‘T’ on that one and the ‘T’ on that (indicated).

Q. You say the ‘T’ is different? A.

What do you think?

Q. Are you saying that the ‘T’ goes up a little bit above the cross of the ‘T’? A.

You are asking whether they are exactly the same and I am not saying they are.

Q. Are they pretty much the same? A.

They are different. [page 90]

Q. They are different? A.

They both spell ‘Texas’.

Q. Is it written in more or less the same way? A.

No.

Q. Does the writing appear to be done by the same person? A.

No.

Q. Do you think it has been done by somebody else? A.

I would say so, yes.

Q. You see, there is a lot of other scribbling. A.

I noticed that.

Q. Did you do that? A.

No.

Q. But you did put the ‘IM’s? A.

No.

Q. You did not put the ‘IM’s? A.

No.

Q. It is your face mask but you did not write the ‘IM’s on it? A.

That’s right.

Q. Someone has come into your house, got your face mask and engraved the ‘IM’ symbol on it?

A.

They have engraved lots of things on it.

Q. Did you hear suspicious engraving noises at night, or anything like that? A.

When I am home?

Undermining by extrapolation and sarcasm 2.66 This question challenges Milat’s clearly untenable assertions about the engraving. What made this evidence so important was the fact that Milat’s defence depended very heavily upon the assertion that someone (and not a police officer) had planted all of this incriminating evidence in his home. By extrapolating this assertion to its limits, Tedeschi was able to show how flimsy it really was, yet how Milat was prepared to embrace it all the same. The extrapolation was intuitive — one can sense Tedeschi feeling and probing gingerly with each question and response until he has achieved a position he can work with. Milat’s refusal to admit to having done any of the engraving on the paintball mask was simply not believable; perhaps he did not want to admit to having engraved the word ‘die’ and the skull and crossbones. The use of sarcasm by the cross-examiner here was [page 91] appropriate, but, as noted above37 this must be used sparingly. It was an effective way to finish this passage of the cross-examination, before moving on to the next topic. Q. Yes.

A.

No.

Q. I suggest to you this Browning pistol was in your home, to your knowledge, at the time the police came on 22 May 1994. A.

No.

Exploring and probing a plausible theory arising from the evidence 2.67 Tedeschi here commences a theme aimed at showing Milat was the person who had hidden the various guns and gun parts found in his house by police. Police involved in the ‘stake out’ of the house on the morning of Milat’s arrest had given evidence of hearing a car door open and shut twice inside the garage in the time between police phoning Milat, to tell him to come out, and when he eventually came out some 13 minutes later. Tedeschi had a theory that Milat may have hurriedly hidden the Browning pistol under the washing machine in that time, having retrieved it from the car. The Crown case asserted that Milat was a person who would often keep a pistol or revolver in his car. Tedeschi also develops the theme further by establishing that Milat had sufficient knowledge of ballistics to know how gun parts could incriminate someone, so suggesting a motive on Milat’s part to hide them or get rid of them, particularly after he had become aware from media reports that police investigating the Belanglo State Forest murders were looking for a Ruger that might be connected with ballistics evidence found in the forest. Q. Was it in your car underneath the front driver’s seat, and were you worried the police would discover it, therefore you went to your car, retrieved it and tried to hide it underneath the washing machine?

A.

I never went to my car on that morning.

Q. I suggest you did go to your car on that morning and opened it and closed it? A.

I didn’t.

Q. If you had had a pistol in the car and you knew that the police were coming, you would want to hide it, wouldn’t you? A.

I don’t know.

Q. Well, you were trying to keep your illegal guns from the police, weren’t you? A.

Yes. [page 92]

Q. The possession of this would be the possession of an illegal gun, wouldn’t it? A.

Definitely.

Q. If this was in your house, to your knowledge, at the time the police came you would have wanted to hide it, wouldn’t you? A.

I would imagine I would, yes.

Q. I suggest to you that is exactly what you did do when the police came on 22 May? A.

No, I didn’t.

Q. The manual for the Ruger 10/22, did you bring it to your home at

[XXXXXXXX] Street [Eagle Vale]? A.

I most probably say I did.

Q. You brought it from Guildford to [XXXXXXXX] Street [Eagle Vale]? A.

If I brought it over there, yes.

Q. You have told us that you think that someone has come into your home and planted all these items at your home at [XXXXXXXX] Street [Eagle Vale]. The fact of the matter is no barrel for a 22 Ruger was found at your home, was it? A.

I haven’t heard of one, no.

Q. What you are saying is somebody has come to your home and planted all those items but not planted the most important part of the weapon for tracing bullets, namely, the barrel. That is what you are saying, isn’t it? A.

No, I’m not saying that.

Q. Did you know in 1994 that bullets get rifling marks on them from being fired through a barrel? A.

Yes.

Q. Did you know there were ways in which those rifling marks could be distinguished according to which rifle had fired the bullets? A.

Yes.

Q. Did you know one way the police had of tracing bullets to a particular firearm was by comparing those rifling marks? A.

Yes.

Breaking the golden rule of cross-examination is sometimes appropriate 2.68 It is often said that the cross-examiner should never ask a question that he or she does not know the answer to. This is sensible in theory, but in practice the occasion sometimes arises where the cross-examiner wants to pursue a hunch and does not know what answer will be given. It is appropriate to proceed with such a question only in two situations: first, if it is crucial to obtain an answer [page 93] to the question as the case will otherwise fail (this will be extremely rare as no prosecution case should be so flimsy); and second, if regardless of what the answer is it can do no harm (that is, there is ‘nothing to lose’). Tedeschi’s question here is an example of the latter, and the hunch paid off with an affirmative answer from the witness. The question was an important one to affirm a possible motivation to hide the Ruger bolt and the rifle barrel. Tedeschi’s hunch here was intuitively sound — given Milat’s obvious experience and interest in firearms it would have been odd if he had no knowledge of elementary ballistics. Q. At that time in 1994, were you aware that the police in the Belanglo forest murders case were looking for a Ruger 10/22 -A.

Yes.

Q. I am sorry, I withdraw that. Were you aware in May 1994 that the police investigating the Belanglo forest murders were looking for a

Ruger? A.

Yes.

Q. You had read that in the papers? A.

Read it, heard it, yes.

Q. It was open knowledge, wasn’t it? A.

Yes.

Q. You knew from the publicity that the police were claiming to have a way of linking ballistic items found in the forest back to a rifle, if they could find it? A.

Yes.

Q. At that time did you know that the police ballistics experts could trace a firearm from the bolt?38 A.

From the what?

Q. From the bolt? A.

Yes.

Q. You knew that? A.

Yes.

Q. Did you know that the police could trace a firearm from chamber marks? A.

Not particularly.

Q. You see, I suggest to you that you placed the Ruger parts in the wall cavity?

A.

No, I didn’t. [page 94]

Q. I suggest to you that you got rid of the barrel of that Ruger 10/22 because you had heard or read that the police had found ballistics material in the forest? A.

No, I didn’t.

Q. I suggest to you that you hid those Ruger parts in the wall cavity for it would be highly unlikely anybody would ever find them? A.

I never hid anything there.

Q. I suggest to you that when the police rang you on the morning of 22 May 1994 that you hurriedly had to hide a Ruger receiver? A.

I never hid nothing.

Q. That you hurriedly hid it in the boot in the hall cupboard? A.

No, I didn’t.

Q. That you hurriedly hid the Browning pistol because it was a prohibited firearm? A.

No, I didn’t.

Q. I suggest to you that that was a weapon which you had possessed all along? A.

The last time I seen that was 1967 — ’87.

Q. I suggest that was a weapon you saw before the police came into

your home on the morning of 22 May 1994? A.

No, I didn’t.

Q. I suggest to you that you knew perfectly well that the other Ruger parts were in your house, namely, the butt plate39 and the broken barrel bands, or band? A.

I had an idea the butt plate was there, yes.

Q. And the barrel band?40 A.

No, it could have been there but I didn’t know it was there.

Q. I suggest to you nobody planted any of those items in your home but you placed each of those items in your home in the place where it was found? A.

No, I didn’t.

Q. I suggest to you that the single fired cartridge case found in the plastic bag in bedroom 4, was a cartridge case you had put in there.41 A.

No, I didn’t.

Q. You had ammunition in that plastic bag on the bed, didn’t you? A.

I don’t know whether I had — what I had in that plastic bag. [page 95]

Q. You know that the plastic bag that was on the bed had ammunition in it? A.

I have seen the plastic bag tendered here, yes.

Q. That was your ammunition? A.

I would agree it is, yes.

Q. I suggest to you that the fired cartridge case was in that bag because you put it there? A.

I imagine the ammo would have been on the dresser. I couldn’t see that it would be just on the bed.

Q. You yourself have a habit of wrapping your bolts in material? A.

In wrapping up bolts?

Q. Wrapping up rifle bolts in pieces of material? A.

I don’t know whether it is a habit.

The significance of the seemingly insignificant; attention to detail; cloths and rags 2.69 Painstaking comparisons of the many photographs taken by police with cloth items found had revealed some important connections. Milat had many rags. Some were wrapped around guns or gun parts — no doubt to protect them. Some were found in a large commercial bag of rags in his garage. A number of them had been cut and/or torn in a way shown to be consistent with having come from a commercial rag supplier. There were similarities between some of these rags and some rags which had been found used as gags or blindfolds on some of victims in the forest. (Compare, for example, Photo 20 showing one of the pieces of shirt cloth used as part of a gag upon the victim Walters, and Photo 4 showing a piece of a shirt in which the Ruger bolt, found in the wall cavity, was wrapped — note how in each case the collar has been removed and the shirt cloth is a shoulder portion of a shirt). There was a checked piece of

rag from a shirt, wrapped around the bolt of the Anschutz rifle.42 The bolt was found inside the canvass bag in the alcove at Walter’s home at Hilltop, that had the name ‘Ivan’ written inside the bag’s flap. Ballistics evidence had established that the Anschutz rifle43 had been fired at the Neugebauer/Habschied murder site, apparently having been used to shoot at bottles and other targets in Area A, where a number of fired cartridge cases were located. The checked rag pattern was rather complex and perfectly matched the pattern of a shirt rag found in bedroom 4 in Milat’s home at Eagle Vale, apparently used in conjunction with the model paints it was found with.44 The clear inference was that they were pieces of rag from the same shirt. In this way a further important link was made between Milat and the Anschutz rifle. Tedeschi’s questions occur in an important order, to establish that Milat used rags in this way, before confronting him with the fact that the Ruger bolt was found wrapped in such a rag.

[page 96] Q. The rifle bolt in the locker at Guildford was wrapped up in a piece of material, wasn’t it? A.

Yes.

Q. The Anschutz rifle bolt was wrapped up in a piece of material at Hilltop, wasn’t it? A.

I believe it is so, yes.

Q. You wrapped up both of those, didn’t you? A.

No.

Q. Well, certainly the bolt in the locker was yours? A.

That’s correct.

Q. The Anschutz was yours, wasn’t it? A.

No.

Q. Has the Anschutz ever been yours? A.

Yes.

Q. Have you seen a piece of material that was wrapped around the Ruger bolt -A.

No, I haven’t. I have seen it here in court.

Q. You have seen it here in court. A.

Yes.

Q. That is the kind of material you used to wrap things up in, in particular, rifle parts? A.

I used rags.

Q. You would use rags like that to wrap up rifle parts? A.

I suppose I did, yes.

Q. What you say — and correct me if I am wrong — someone has not only gone to the trouble of getting into your house, switching off the alarm, getting up through your manhole into the roof space and deposited Ruger parts down through the wall cavity — somebody not only has gone to the trouble of painting camouflage on the trigger mechanism in the wall cavity in the same colours, or similar colours as other items of yours, but someone has gone to

the trouble of wrapping up bolts in material similar to what you wrap up rifle parts in, is that what you say? A.

No.

Stringing together doubtful assertions made by the witness 2.70 Here we see the cross-examiner summarising a series of unlikely propositions maintained by the witness, to emphasise how unlikely it is that the newly-introduced proposition made (namely, Milat’s denial that he had wrapped the Anschutz bolt in a piece of checked shirt material) would be true. The technique of stringing together and accumulating items of evidence previously given is [page 97] very effectively used here to add emphasis, and to remind the jury of the witness’s previous doubtful assertions. Such questions anticipate the cross-examiner’s closing address. Q. Well, which part do you disagree with? A.

I don’t know what — I sit here and see rags. I don’t know if they are similar. They are rags, as far as I am concerned.

Q. You have heard evidence of those parts being found in the wall cavity and the bolt was wrapped up in a piece of material. (Crown Prosecutor granted access to exhibit EV.) Is that right? See this piece of shirt material?45 You have seen this before, haven’t you, these two pieces of material (shown). You have seen that, haven’t you?

A.

I have seen it here, yes.

Q. Isn’t that the kind of material you used to wrap up other rifle parts in, that sort of material? A.

Rags, yes.

Q. Rags like that? A.

I don’t know whether they are like that or not.

Q. Rags made out of shirt material? A.

Whatever the rags are made out of.

Q. Including shirt material. A.

I don’t know.

Q. Well, there was the bolt in the locker wrapped up in -A.

A bit of rag.

Q. What sort of rag? A.

Just a bit of rag that I got out of the garage.

Q. A piece of shirt material? A.

I haven’t got a clue.

Q. Might it have been shirt rag? A.

I couldn’t say that. (Crown Prosecutor granted access to exhibit JA) [page 98]

Q. Do you agree that from time to time you wrapped up rifle parts in shirt material? A.

I wrapped up rifle parts in rag — whether that is a shirt or not, I don’t know.

Q. Have a look at exhibit JA (shown). Do you agree that is a piece of shirt?46 A.

Yes.

Q. You agree it is a piece of shirt? A.

Well, it is a piece of something you wear, anyway.

Q. Did you cut it? A.

No.

Q. Did you get it like this? A.

I haven’t seen it before.

Q. You haven’t seen it before? A.

No, it’s just a bit of rag to me.

Q. Did you wrap up the rifle parts in the grey locker at [XXXXXXXX XXXX] Road, Guildford, in this piece of green shirt material? A.

I would have to say I would have wrapped something up — whether with that rag, I don’t remember.

Making use of undisputed items — the contents of Milat’s grey locker at Guildford 2.71 When police searched the house at Guildford where Milat’s mother

resided still and where Milat had resided at the time of the murders, they found a grey locker47 which Milat did not dispute was his, and which he kept locked and to which he alone had access. Inside police found a number of firearms and also a rifle bolt wrapped in greencoloured shirt material. Milat eventually agrees with the crossexaminer that he has wrapped the bolt in this way. By pressing this issue, the cross-examiner’s aim is to suggest that the Anschutz bolt, similarly wrapped in a shirt rag, was also Milat’s. Nevertheless, Milat maintains that the only rifle bolt he wrapped up in this way was the one found in the locker. Q. You do not dispute you wrapped it in this material? A.

If you are telling me I did — if it was found in there, I suppose I did.

Q. You have heard the evidence that the rifle bolt in the grey locker was found in this material. Have you seen the photographs of the locker? A.

When you passed them around — I haven’t seen them personally. [page 99]

Q. Do you agree you wrapped up rifle parts in shirt material like this? A.

I could have wrapped that rifle bolt. I agree with that, whatever it is.

Q. Did you wrap up rifle bolts in material like that shirt material? A.

That bolt I had in the grey locker, I did.

Q. Did you wrap up rifle bolts in material like shirt material? A.

I only wrapped up one in the locker.

Q. You wrapped up the one in the locker in material like shirt material? A.

Yes.

Q. So someone has not only gone into your house, gone up into the roof space, not only dropped those parts into the roof cavity, painted them in camouflage paint, but wrapped them in shirt material? A.

I don’t know what they did.

Echoing and confronting 2.72 The witness having committed himself to saying that he had only wrapped one gun bolt in a rag (the one in the grey locker), the crossexaminer comes back to the previously asked questions about the items hidden in the wall cavity, to great effect. This is a good example of the technique of ‘echoing’ previous evidence to show the accumulation of evidence that tells against the proposition being put forward by the witness. Q. Is that what you are saying? A.

No, I’m not — you are saying it.

Q. Did you keep rifle parts in plastic bags? A.

No, not that I can recall. I could.

Q. Did you keep ammunition in plastic bags?

A.

I could.

Q. You have heard the evidence that the Ruger parts in the wall cavity, other than the rotary Ruger48 were in a plastic bag? A.

Yes.

Q. Is this the kind of plastic bag you sometimes kept ammunition in? (Shown) A.

I don’t really know. I could.

Q. Do you agree it is of amazing coincidence about the Ruger parts? Do you agree? A.

Coincidence about what? [page 100]

Q. Do you say that it is an amazing coincidence, all these features are present around these Ruger parts in the wall cavity? A.

That what you have got in your hand now?

Q. Would you have a look at these pieces of plastic from exhibit FK found in bedroom four? (shown) Do you see the plastic bags? A.

Yes.

Q. Did you keep ammunition in plastic bags? A.

Perhaps sometimes I did.

Q. In your house at [XXXXXXXX] Street [Eagle Vale]? A.

I probably did.

Q. Incidentally, why did you engrave the name ‘Texas’ on the black powder revolver?49 A.

To tell them apart from others like it.

Q. Why ‘Texas’ rather than your name? A.

It’s an illegal weapon. I’m not going to write my name on something I really shouldn’t have.

Q. I would like to take you to the High Sierra back pack,50 exhibit GZ, and the yellow canvas haversack,51 exhibit HH. You have told us that you heard that the police were making inquiries at your work, is that right? A.

Yes.

Q. Who did you hear that from? A.

Me workmates who the police had talked to.

Q. Who were they? A.

One was Garry De Silva, Noel Wild, Donny Borthwick.

Q. Did they all tell you the police had been inquiring about you? A.

Asking what sort of guns I had.

Q. What sort of guns you had? A.

Yes.

Q. So you became concerned about the police coming to your home and finding those guns? A.

Yes, so to speak.

[page 101] Q. You say that was around Christmas 1993? A.

That’s right.

Q. You have told us you were worried about the security of your guns up in your roof space? A.

I wasn’t, Shirley was.

Q. What was Shirley concerned about? A.

Actually, she was more concerned if there was a fire or explosions, or something, you know, when she seen how much I had.

Q. Did she know you had guns there? A.

Yes.

Q. How was she aware of that? A.

I imagine she would have seen them whenever she was up there.

Q. Did Shirley go up in the roof space? A.

I imagine, when we had a problem with the door.

Q. You had a problem with the door? A.

Yes.

Q. Did you ever see her up there? A.

Not that I recall, no.

Q. Did you ever see her going up there?

A.

No.

Q. Did you ever tell her what you had up there? A.

She knew I had guns up there and other stuff.

Q. You told her you had guns up there? A.

Yes, guns and ammunition.

Q. Guns and ammunition? A.

Yes.

Q. I suggest to you, you never told Shirley you had guns up there? A.

I did.

Q. What you did was you moved all your illegal guns to the alcove at your brother Wally’s, right? A.

Right.

Q. Now, at your place at [XXXXXXXX] Street [Eagle Vale] the guns were put in the roof space and there was a burglar alarm protecting them? A.

There was a burglar alarm in the house, yes. [page 102]

Q. To get up into the roof space you had, firstly, to break into the house and then go up through the manhole? A.

If you’re breaking into the place I imagine that’s what you do, yes.

Q. That’s the only way of getting in to where those guns were? A.

That’s the only way I could get up through the manhole.

Q. At Walter’s place there was no burglar alarm? A.

I’m not aware of one, no.

Q. There was no burglar alarm as far as you knew, was there? A.

I didn’t know at all but I didn’t think there was one there.

Q. And access to that area under the house was from outside, wasn’t it? A.

Yes.

Q. So one didn’t have to break into the house to get access to the alcove where you stored those guns? A.

Into whose?

Q. One did not have to break in to Walter’s house in order to get to the alcove where you stored the guns, is that right? A.

No

Q. You only had to break in from outside underneath the house, right? A.

Well I suppose so, yes.

Q. Was there a padlocked door? A.

I’m not sure what sort of security he had there.

Q. What size block does he live on. Is it -A.

A couple of acres I think.

Q. A couple of acres? A.

Yes.

Q. So he is still further away from neighbours than you are? A.

He had a house right next door on both sides of him.

Q. If he had a couple of acres he would be a lot further away from his neighbours than you were, wouldn’t he? A.

Oh yes.

Q. Is this the case, it was a bush block? A.

He has a lot of bush on his ground, yes.

Q. There is a lot of bush around his house? A.

Yes. [page 103]

Q. So when he is away it would be a lot easier for someone to break in underneath his house than it would be to break into your house at [XXXXXXXX] Street, Eagle Vale, wouldn’t it? A.

I would not have a clue.

Q. See, what I suggest to you is the security of the weapons played no part at all in your decision to move them from [XXXXXXXX] Street [Eagle Vale] to [XXXXXX] Drive, Hilltop. What do you say to that? A.

Yes.

Q. Do you agree with what I say?

A.

Why I moved them over there?

Q. Yes. A.

I moved them over there because I knew they would be more secure.

Q. I am suggesting they were not more secure at your brother Walter’s than they were at your place, in fact they were considerably less secure? A.

I had more of a chance of tradesmen coming into my place than coming into Wally’s.

Q. Do you know what tradesmen Walter was going to get into his house? A.

He probably would not get any, no.

Q. Do you know? A.

No, I wouldn’t have a clue.

Q. You would not have a clue. I suggest to you the security at Walter’s place was nowhere near as good as the security at your place? A.

I could not answer that.

Q. For somebody to unload guns at your place from up in the roof space they would have to lower them down through the manhole, wouldn’t they? A.

If you take a rifle, yes.

Q. And they would have to get through the burglar alarm, past the burglar alarm?

A.

Yes.

Q. Whereas at Walter’s place all they needed to do was break open that door, walk in and walk out, right? A.

I would not have a clue how they would do it.

Q. I suggest to you the security at Walter’s place was not as good as at your place? A.

I’ve never heard of anyone around Wally’s area getting broken into.

Q. (Witness shown exhibit NE. Counsel approached.) Mr Milat, do you remember I was asking you about rags. Now at the top of this page is the rag from around the Anschutz bolt, right? A.

You’re telling me, yes. Yes I will agree to that. [page 104]

Counsel approaching 2.73 Tedeschi again uses the approach effectively to bring home the point he is making. Some exhibits are so important that they warrant approaching the witness box to show them to the witness, and then have the witness describe, often in detail, what they see. Tedeschi’s approach here was rather like that of a patient teacher, taking a student over every facet of some basic learning. It was not in the least intimidating in style, and was all the more effective for this reason. In an instance such as this one involving a comparison of the shirt material wrapped around the Anschutz bolt and the photograph of the piece of shirt found in bedroom 452 there was simply no way

that the witness could say other than that they were identical because the jury could see this for themselves, after evidence had been given by police forensic officers who had taken and enlarged photographs of the materials and compared them as identical. Nevertheless, Milat appears to distance himself from agreeing with the self-evident fact by saying ‘if you say so’. Many advocates make the mistake of letting such an answer go, but Tedeschi correctly insists that the witness look and satisfy himself that it is so, which Milat did. This is a powerful technique that presented an important piece of evidence dramatically through the witness’s own acknowledgement of it. Q. At the bottom of the page is a photograph of the bed in bedroom 4 at [XXXXXXXX] Street [Eagle Vale]? A.

Yes.

Q. Now this piece around the Anschutz bolt is part of exhibit HH which is in front of you here? A.

Yes.

Q. Now can you see on the back of the shirt you have got a red cross? A.

Yes.

Q. Faint white in the middle on a black background? A.

Yes.

Q. Now can you see on this one here from the bed at [XXXXXXXX] Street [Eagle Vale] a red cross, a bit fainter in the middle and a black background? A.

Yes.

Q. Do you agree that is the same sort of red cross, faint in the middle, black background? A.

Yes.

Q. Now if you go along — we will put them in the same direction — along this way, there are two red rectangles together? A.

Yes. [page 105]

Q. In the next one? A.

Yes.

Q. You see here two red rectangles? A.

Yes.

Q. Now can you see on the next one there appears to be again a red cross on a black background. You have got a red cross on a black background and then two red squares and a red cross on a black background? A.

Yes.

Q. Can you see that? A.

Yes.

Q. That’s the same on this shirt here? A.

Very similar, yes.

Q. If you go to the next one, two red boxes, one red box, two red

boxes, one red box, right? can you see that? A.

I can’t really see it, but I’m accepting your word.

Q. Well, can you see two red boxes together? A.

Yes.

Q. And one? A.

Yes.

Q. Then two? A.

Yes.

Q. Then one? A.

Yes.

Q. And you can even go further on — two, one, two, one, two, one? A.

Yes.

Q. This is on the next line down from the black square, right? A.

Yes.

Q. Now we look at this one. Can you see? Have a look — two, one, two, one, can you see that? A.

You’re telling me, I believe you.

Q. No, I want you to have a look — two, one, two, one. Can you see that? A.

Yes.

Q. Do you agree it’s there? A.

Two, one, two, one, yes. [page 106]

Q. And when you have the one square on that line, can you see that there is a different sort of red in the middle? A.

Oh, I can’t really.

Q. Have a look? A.

I agree with you.

Q. You agree with me? A.

Yes.

Q. Can you see the same thing here? A.

Yes.

Q. And can you see where there are two boxes there appears to be a faint white down the middle? A.

Yes.

Q. There appears to be something down the middle? A.

Just like this.

Q. Same sort of criss-cross? A.

It’s the --

Q. The same pattern as this, isn’t it?

A.

Like that and that.

Q. Yes, the same pattern, isn’t it? A.

It could be.

Q. Can you see any differences? A.

I can see a lot of — just looking at this and looking at that. Possibly, if you had that area of rag here, then it might be all right.

Q. But do you see similarities in the pattern? A.

I accept — because I’ve heard these people telling me that it is — so I’d accept it.

Q. That photograph was taken of the bed in bedroom number 4. Do you know what that piece of material was? A.

It looks like a shirt.

Q. And I think you have told us it might have been your shirt? A.

Did I say that?

Q. Didn’t you say that you used to have red check shirts? A.

I’ve had red check shirts. Whether that one was mine -[page 107]

Q. If you had seen some red check material on the bed in bedroom 4 that wasn’t yours, would you have wondered how it got there? A.

I’d just think it was a bit of rag.

Q. Did you put the red check material on to the bed in bedroom 4? A.

I don’t know whether I did or not.

Q. Do you think that might be something that someone has just come in and deposited there? A.

It could be.

Q. So someone has come in and just thrown a piece of rag on the bed, that’s a possibility? A.

Possibly, if you say so.

Q. Do you think it is more likely that it is a piece of shirt material of yours that you have left on the bed? A.

I don’t at all recall ever having — my shirt?

Q. Yes, or do you think there is a possibility that it may have been a shirt of yours? A.

Oh, a possibility. I seriously doubt it but.

Q. Do you think it is a probability that it is a shirt of yours? A.

I can’t ever recall --

Q. You can’t recall what? A.

Ripping up a shirt or anything.

Q. Do your recall having a shirt like that? A.

I’ve had something similar, yes.

Q. Have you got any explanation to give to the ladies and gentlemen of the jury how a piece of red check material which looks like part

of a shirt would come to be on the bed in the fourth bedroom of your home at [XXXXXXXX] Street [Eagle Vale]? A.

I’d imagine it’s just a bit of rag that, if I put it there I would have got it out of the garage or somewhere and put it there.

Creating impact — asking the witness for an explanation to the jury 2.74 As noted previously, the cross-examiner should not ask for an explanation to the jury unless there is no possible reasonable explanation. This question is used four times in quick succession here, and on each occasion there is no reasonable explanation forthcoming. This creates impact and emphasis and closely engages the jury. Q. So you might have put it there? A.

There’s a good chance of it, yes. [page 108]

Q. Do you acknowledge that the same patterned material was wrapped around the Anschutz bolt underneath your brother Walter’s home? A.

The same piece?

Q. A piece of material, this one that I have just shown you, with exactly the same pattern, was found around the Anschutz bolt under your brother Walter’s home? A.

Yes.

Q. You agree with that? A.

Yes.

Q. And have you got any explanation to give to the jury how the same patterned material would be in the fourth bedroom at [XXXXXXXX] Street [Eagle Vale] around the Anschutz bolt, at your brother’s home? A.

No.

Q. Well, did you wrap the piece of material, part of exhibit HH, around the Anschutz bolt? A.

No.

Q. So what explanation can you give the jury how a piece of material this pattern, the same, has come to be wrapped around the Anschutz bolt? A.

I can’t give them any.

A focusing question 2.75 This last question neatly rounds off the point being made, for the benefit of the jury. Q. Do you think that someone has planted it around the Anschutz bolt? A.

Someone has wrapped it around there.

Q. Do you think someone has deliberately wrapped it around it to implicate you? A.

I don’t know.

Q. Do you think that’s a possibility? A.

I don’t know. I’ve got no idea.

Q. Well, have you got any explanation to give to the jury to explain to them how that same patterned piece of material came to be wrapped around the Anschutz bolt? A.

I don’t know.

Q. Do I take it from that that you have no explanation to give to the jury? A.

That’s right.

Q. Well, I suggest to you that it is all part of the same shirt and that the shirt was yours? A.

I thought I heard it described as an industrial rag. [page 109]

Q. I suggest to you that it was part of shirt material that came from your place? A.

I don’t know.

Q. Well, I suggest to you that you wrapped the material around the Anschutz bolt and you put the bolt into the yellow haversack? A.

I never did.

Putting the case 2.76 Here again the cross-examiner is putting the conclusion that he will be seeking to rely on — putting his case, in fairness, to the witness,

and also telegraphing for the benefit of the jury what will inevitably be a component of his closing address. Q. Do you acknowledge that that haversack was found with your stuff underneath Walter’s place in the alcove? A.

Well, I’ve heard evidence saying that it was in there.

Q. You are not suggesting that the police have planted it or anything like that? A.

I wouldn’t suggest anything what the police would do.

Q. Is this the case, that you are saying that someone has gone to your brother’s place and planted the yellow haversack with the Anschutz bolt in amongst your property? A.

I’m not saying that at all.

Forcing a ‘turnaround’ by asking for an explanation 2.77 Milat at first denies suggesting that the yellow haversack containing the Anschutz bolt was planted by someone among his property in the alcove at Walter’s house. Four questions later he does a complete turnaround and agrees that someone must have planted it. The cross-examiner achieves this simply by asking him for an explanation, in the expectation that he had none, and then rephrasing the same question and putting it again. In the end, the witness has no option but to return to the absurd ‘planting’ theory, because he simply has no other explanation that he is willing to offer. Q. Well, how do you say that the yellow haversack with the Anschutz bolt came to be with your property in the alcove?

A.

I have no idea.

Q. Do you think someone might have planted it there? A.

Put that bag on top of my property?

Q. With your property? A.

Well, they must have because I never did it.

Q. Are you saying the same thing about the blue High Sierra day pack — somebody has planted that in amongst your property? A.

Yes. I never did it. [page 110]

Capitalising when the witness seeks refuge in an absurd explanation 2.78 Certain now that the witness is unwilling to offer any explanation except the ‘planting’ theory, the cross-examiner is able to ask whether this is his explanation for other things, such as the location of Schmidl’s High Sierra day pack among Milat’s property, confident of an affirmative answer, which further compounds the absurdity of the explanation. Q. Well do you think that the person who planted the yellow haversack in the alcove knew that you had this piece of material on your bed in bedroom 4? A.

I don’t know what they knew.

Clarity of thought ‘on the run’ 2.79 This remarkably simple question shows the cross-examiner’s clarity of thought ‘on the run’ — an important skill of cross-examination — and reveals the absurdity of Milat’s ‘planting’ theory. The question derives from the process of assuming that the doubted answer is true, and then extrapolating this to its logical conclusion in order to expose the weaknesses in the answer. To make this kind of simple connection of ideas during cross-examination (that if someone had planted the Anschutz bolt then they may also have known that the same shirt material as was found wrapped around the bolt was also in an obscure box found on the bed in bedroom 4 at Milat’s home — a highly unlikely proposition) requires a clear head and a sharp focus on the evidence as it emerges, and making quick connections with evidence previously given. It is a result of preparation, listening carefully to the answers being given and recognising their significance instantly and the potential they offer for further questions. The question asked here serves the double purpose of not only reminding the jury of the previous compelling evidence about the shirt material, but also exposing the weakness of the ‘planting’ theory. Q. The High Sierra day pack was found with the two camouflaged magazines exhibit GZ. Would you have a look at exhibit GZ. (Shown to witness.) (Approached.) You see these items.53 CROWN PROSECUTOR: Perhaps I might have also the two camouflaged magazines as well, which are part of that exhibit, but they are MFI 100.54 [page 111]

Q. Firstly, this is the blue High Sierra day pack. You claim never to have seen it? A.

That’s right.

Q. You didn’t take this from Simone Schmidl, did you? A.

I never took it from anyone.

Q. Have you had a chance to look at it? A.

I’ve seen it from sitting there, yeah.

Q. There’s no name on it, is there? A.

High Sierra.

Q. I’m sorry, the name of an owner? A.

I’m not aware of it.

Q. Now these two magazines which are part of the contents of the High Sierra day pack, you have told us they were yours? A.

That’s right.

Q. And they belong to the SKK rifle, the camouflaged one that was also in the alcove? A.

That’s right.

Q. Now, have you got any explanation to give to the jury how your camouflaged magazines from your SKK rifle came to be in this High Sierra day pack? A.

No. When I put them in — the SKKs was dismantled and everything was put in a box. That’s as far as I know where the magazines – that’s where I put them when I sent them over to me

brother’s place.

Echoing 2.80 Note how the cross-examiner does not simply refer to ‘magazines’ but to ‘camouflaged magazines’. The use of the descriptive adjective reminds the jury of the significance of these magazines being painted camouflage — it distinctly links the item to the witness, who has agreed to having painted many things in camouflage colours, and this distinctive item being found in Schmidl’s day pack is highly suggestive of the witness having put it there himself. It never hurts to reinforce important evidence in this way when the opportunity arises. Q. So when you sent these magazines over to your brother’s place, they were in a box? A.

Yes.

Q. They were not in this? A.

No. [page 112]

Q. Do -A.

No, I haven’t seen that day pack before.

Q. So someone has got into underneath your brother’s house and has known that these were your SKK magazines, taken them and put them into the High Sierra day pack, is that what you say?

A.

I wouldn’t have thought of saying that, but you’re saying it.

Q. No, I’m asking you, is that what you’re saying — that someone has taken these two camouflaged magazines and put them in the High Sierra day pack? A.

The last time I seen them they were in that — there was a brown box. That’s where I had them with the SKKs.

Pressing for an obvious answer 2.81 Once again, Milat appears reluctant to acknowledge the implications of his evidence, by suggesting that he ‘never would have thought of that’, as if the implication is merely an assertion by the crossexaminer. It seems to be a fairly transparent attempt to avoid the inevitable implications, yet it is surprising how many crossexaminers will not pick up on this opportunity by pressing the question, and will pass on to something else. But here, Tedeschi knows that it is important to bring this point home, and pursues it to its logical conclusion, which is the answer he is seeking. Q. You are saying you didn’t put them in this High Sierra day pack? A.

That’s correct.

Q. So someone else must have? A.

That’s correct.

Arriving at the conclusion 2.82 This last question puts the logical conclusion that the crossexaminer is after. Having thus punctuated the finish of this topic, the cross-examiner can now move on to the next theme.

Q. And do you think that whoever put them into the High Sierra day pack was trying to implicate you in something? A.

I don’t know whether they were trying to implicate me or whether they borrowed it. Whoever used that bag — I don’t know. I hadn’t seen them for months.

Q. And the other items from the High Sierra day pack — have a look at the torch. Is that your torch? A.

I don’t ever recall having a torch like this. [page 113]

Probing for connections between the witness and the incriminating item of evidence 2.83 The presence of Schmidl’s day pack among numerous items of Milat’s property is incriminating, yet the witness insists that he has no knowledge of the day pack whatsoever. So the cross-examiner probes for any connection between the witness and the contents of the day pack. Like peeling the layers of an onion, the cross-examiner here meticulously goes through the contents, item by item, confident that the position stubbornly maintained by the witness will increasingly be seen to be unsustainable. Q. Not yours? A.

I would say it’s not mine, no.

Q. Is this yours — some socks?

A.

Normally — it’s a sock. That’s about all I can say.

Q. What — so it’s yours? A.

No.

Q. What about these advertisements for property? A.

Well, I don’t own them at all.

Q. So what — somebody has gone to the trouble of tearing out some advertisements for properties in the country and putting them into the High Sierra day pack? A.

I don’t know what they’ve done, what did they have in mind.

Q. You did not put them in the High Sierra day pack? A.

No, I haven’t seen them property before, or whatever it is.

Q. There is an advertisement for a 30-acre property, $7,500 full price, ideal grazing or roomy weekender fishing or swimming with a lake nearby and handy to the town? A.

I’ve never heard of that description before.

Q. Never heard of it. Is this yours (indicated.) A.

No idea.

HIS HONOUR: I am sorry, what is it? CROWN PROSECUTOR: Q. It is a tea towel? A.

I’ve had tea towels in my place.

Q. Like this one? A.

A tea towel is a tea towel. I never really got too much into it.

Q. The only matter you can say is yours is the camouflage magazines, is that right? A.

That’s correct. [page 114]

Q. If we had not of found the Harley Davidson motor bike pictures you would have denied those, wouldn’t you? A.

No way.

Suggesting that the witness’s answer was borne of necessity 2.84 The witness seems keen to distance himself from Schmidl’s High Sierra day pack. The only items of the many found inside it that Milat will admit ownership of are the SKK magazines. Tedeschi’s question, in effect, inquires whether the reason that Milat admits ownership of these is because he knows that the Crown can prove this anyway since the SKK rifle and magazine can be seen in a photograph found in his home, in which these items are pictured with a number of other weapons, leaning against his HarleyDavidson motorcycle. This is a forceful way of undermining the position being taken by the witness. It is not appropriate with every witness, but it certainly was an appropriate approach here, in view of the way that Milat had been answering questions. Q. The only reason you have admitted to the magazines is because we have photographs showing the magazine and the SKK rifle leaning up against your Harley Davidson motor bike, isn’t it? A.

No. I just — I’m not disputing the fact them SKKs are mine, whether you showed me the Harley Davidson or not.

Q. Did you ever go away with Walter looking for property? A.

Yes.

Q. Where did you go? A.

Up Mudgee.

Q. Did you go to properties like those described there? A.

No.

Q. Now, also in the High Sierra day pack there were four full moon cartridge clips each loaded with six cartridges, right? Can you see them there, part of exhibit GZ?55 A.

I’ve seen them entered, yes.

Q. (Counsel approached.) You see them in there (indicated.) You see them there? A.

Yes. [page 115]

Q. Now do you agree that those are exactly the same kind of cartridge clips or full moon clips that you had in your Jackeroo?56 A.

They are the same type that was found in there, yes.

Getting the witness to admit unavoidable/patent truths 2.85 This technique is simple but effective. The witness must answer the question in the affirmative — he must concede the link up of these pieces of circumstantial evidence; to deny them would be an obvious

lie. Tedeschi repeats this process by following through with other items found in the High Sierra day pack which are identical to items possessed by Milat at his home; namely, three named brands of ammunition. Observe how these circumstances are combined in the series of questions that follow, leading to the climactic denouement several questions later, where Tedeschi asks Milat to offer some explanation to the jury. Q. The same type you had in there, in the Jackeroo? A.

I heard they were found in there but I can’t ever recall actually having them in the Jackeroo at that time.

Q. Do you agree that the 24 cartridges there are Winchester, PMC and Norma brands of cartridges. Just have a look? A.

Well --

Q. Do you agree that they are those — you have heard evidence of those? A.

Yeah, I accept that.

Q. You accept that? A.

I have trouble seeing things.

Q. Do you agree in your home at [XXXXXXXX] Street [Eagle Vale] in the fourth bedroom and in the garage there was three types of 45 calibre cartridges, namely Winchester, PMC and Norma? A.

Yes, those brands are familiar to me.

Q. Are you saying it is just sheer coincidence that the contents of the High Sierra day pack contained your two SKK magazines, exactly

the same sort of full moon adaptors, full moon clips as you had in your Jackeroo, and exactly the same brands of calibre of ammunition that you had at your home in [XXXXXXXX] Street [Eagle Vale]. Are you saying that is sheer coincidence? A.

No. I’m sure it is the same, my brand of ammo would have got sent over to Wally’s place. [page 116]

Sharpening focus and ‘planting a flag’ for the jury, by parceling items of evidence 2.86 This last question neatly summarises a parcel of items of evidence which, when so parceled in combination, powerfully implicates the witness as having had the High Sierra day pack in his possession. The question sharply focuses on the point the cross-examiner wants the jury to see — that the presence of these items cannot be sheer coincidence, but rather, implicates the witness. The question anticipates a submission that the cross-examiner is likely to make in address. For emphasis, the cross-examiner then proceeds again, in the questions that follow, to go through the items and how they are linked to the witness. Q. What I am suggesting to you is that you put that stuff into the High Sierra day pack? A.

I know what you are suggesting but you are wrong.

Q. I suggest you moved the High Sierra day pack with all the other gear that you moved from [XXXXXXXX] Street [Eagle Vale] to the alcove at [XXXXXX] Drive [Hilltop]?

A.

No I never did that.

Q. You have agreed that the High Sierra day pack contained your magazines, two SKK magazines? A.

I’m not personally aware of that, no.

Q. Do you agree from hearing the evidence that those two magazines were found in the High Sierra day pack? A.

Yes, I have heard evidence like that, yes.

Q. And you have agreed they are yours? A.

Yes.

Q. You have heard evidence that full moon clips were found in the High Sierra day pack? A.

I did hear that, yes.

Q. You have agreed they are exactly the same kind found in your Jackeroo? A.

Yes.

Q. You have heard the evidence that there was Winchester, PMC and Norma brands of cartridges found in the High Sierra day pack? A.

I’ve heard that, yes.

Q. You agree exactly the same sort of cartridges, exactly the same sort of brands of cartridges were found at your home? A.

Yes.

[page 117] Q. Do you have any explanation to give to the ladies and gentlemen of the jury why there is that incredible coincidence of all of those items apart from you having put them in the High Sierra day pack? A.

I can’t tell them anything, no. What am I going to say to them?

The ‘focusing’ and ‘flag-planting’ question 2.87 This last question and answer is the conclusion the cross-examiner wants the jury to make from the preceding line of questions; namely, that the witness has no satisfactory explanation. It will no doubt be referred to in address and the jury, when they hear the address, will remember this point in the evidence because of the way the crossexaminer has flagged it with this focusing question. Q. Do you have one explanation to give to the jury for any of those coincidences apart from you putting those items in the High Sierra day pack? A.

Well obviously somebody is trying to make me look real bad.

The climactic question 2.88 Having carefully laid the groundwork, the cross-examiner is able to confidently challenge the witness to offer the jury any single explanation for the string of coincidences referred to. The use of the word ‘jury’ punctuates this question for the jury as a significant one and the weak answer given is very telling. Tedeschi continues with ‘follow through’ questions that draw together previous evidence in order to elaborate the absurdity of the position being maintained by

the witness. Note how the cross-examiner presses the witness about the doings of the imagined ‘person’ who Milat alleges has been planting evidence against him. This continues for the next few pages of transcript. This is very skillful advocacy. Q. The same person who has put the stuff in your wall cavity? A.

I’m not saying it is the same person who put the stuff in the wall cavity.

Q. Somebody is trying to make you look bad? A.

That’s the only thing I can say of it.

Q. Somebody who knows you have Winchester, PMC and Norma brands of ammunition in your home. Is that what you are saying? A.

That’s correct.

Q. Somebody who knows that you have full moon clips in your car, is that what you are saying? A.

Yes.

Q. Someone who knows that you have those camouflage coloured SKK magazines, is that what you are saying? A.

Yes. [page 118]

Q. And is what you are saying that that person somehow got access to underneath Walter’s place to plant this stuff with your property in the alcove. Is that what you are saying?

A.

A lot of people had access to Walter’s place --

Q. Is that what you are saying? A.

No, I’m not saying that.

Q. Are you saying somebody got access to underneath Walter’s place and planted that stuff in your property? A.

I’m saying the magazines were left in that box.

Q. Just listen to my question. Are you saying that somebody got access to underneath Walter’s place to plant that stuff in your property in the alcove? A.

Yes.

Preventing straying 2.89 ‘Just listen to my question’ is a good example of bringing the straying witness back to the question that has been asked — and getting the answer expected. Q. Now I suggest to you that that is manifestly absurd. What do you say to that? A.

I don’t think so.

Q. I suggest to you that you moved the High Sierra day pack and its contents to the alcove? A.

I’ve never seen that High Sierra day pack before.

Q. Let us have a look at the yellow haversack (shown exhibit HH.) You have heard evidence about the Anschutz bolt wrapped up in a

piece of material being found in this haversack? A.

Yes.

Dealing with related and similar items of evidence in series, using the same approach for each 2.90 Having dealt with Schmidl’s High Sierra day pack, Tedeschi moves on to another pack also located in the alcove — in this case, the haversack with the name ‘Ivan’ written on it.57 His series of questions will follow the same theme and course as did his questions about the High Sierra day pack. Having effectively demonstrated the overwhelming circumstances connecting the witness to the High Sierra day pack, Tedeschi now proceeds to do the same thing in relation to the haversack. The use of the same approach on two different items creates a powerful effect by demonstrating that the witness is giving the same kind of hard to believe answers for each item.

[page 119] Q. Now what you say is someone is trying to make it much easier for the police by writing the name ‘Ivan’ on it. Is that what you are saying? A.

I’m not saying made it easier for the police.

Q. If somebody is trying to implicate you by writing the name ‘Ivan’ on this haversack -A.

I could think that, yes.

Q. And someone has also gone to the trouble of putting a whole lot of

ammunition in here. Is any of this yours, is that yours (indicated.) A.

I’ve seen that before, yes.

Q. Is it yours? A.

I don’t know whether it’s mine or not.

Q. Would you tell the court what it is? A.

I don’t know whether I’ve seen that before. I thought it was something else.

Q. What is it? A.

I’m not sure what it is actually.

Q. Is it yours? A.

No, I can’t say it is.

Q. It appears to be like a little purse? A.

Yes.

Q. With some .22 calibre bullets inside? A.

Yes.

Q. Now would you have a look at the rest of the contents and tell us if there is anything you recognise as being yours? A.

A quantity of ammo and a magazine, rifle magazine.

Q. Are they yours? A.

Could be. I’ve got one like this, I’ve got a couple in fact, and a pair of pliers.

‘Light bulb’ moments 2.91 The cross-examiner has a ‘light bulb’ moment on hearing this answer — the witness acknowledges he had a pair of pliers. See how the cross-examiner skillfully uses this simple piece of information in the following questions. Q. Are they yours? A.

I really don’t know. I don’t know, I can’t tell. [page 120]

Q. Did you keep your pliers in a piece of plastic like that? A.

No.

Q. So somebody has gone to the trouble of putting your pliers into a piece of plastic? A.

I don’t know whether these are mine, so whoever --

Q. Might they be yours? A.

Not if they were in this bag. I couldn’t really see how they could be.

Q. Do they look like a pair of pliers of yours? A.

No. I find it hard pressed to describe my pliers. All pliers I suppose look the same.

Q. Do they look anything like a pair of pliers you have ever owned? A.

They look like pliers to me, that’s about it.

Q. So, you don’t recognise them at all? A.

No.

Q. So, do you think somebody might be trying to implicate you in the possession of a nondescript pair of pliers? A.

I couldn’t imagine why I’d have a pair of pliers with anything that I owned, unless in my toolbox.

Q. Can you imagine any reason why somebody might want to plant a pair of pliers on you? A.

Plant on me? I’m not sure what you are trying to say.

Q. You have heard evidence the contents of that bag were found in the bag in the alcove? A.

In this --

Q. In that bag? A.

That’s all this here?

Q. Yes, with the name ‘Ivan’ on it? A.

Yes.

Q. Do you have any reason why anybody would want to plant a nondescript pair of pliers on you. Can you think of any reason why anybody would want to do that? A.

I would not have a clue.

Q. Do you think they might be yours? A.

No, not if they were in this bag.

Q. What about the ammunition? A.

Well, I owned ammo like this. [page 121]

Q. Did you have ammo like that in your yellow haversack? A.

This is not my yellow haversack.

Q. In your yellow haversack? A.

In my one?

Q. Did you have ammunition like that in your yellow haversack? A.

What yellow haversack?

Q. Mr Milat -A.

No, you have to tell me, I can’t go guessing whatever you’re trying to say --

Q. You had a whole lot of property in the alcove? A.

Yes.

Q. If anybody wanted to plant anything on you there was tonnes of stuff in that alcove that could have been put into the yellow haversack? A.

This is not my haversack.

Q. Just listen to my question. Tonnes of material in that alcove of yours, agree? A.

You are saying tonnes. Well I will go along with it, it’s not tonnes.

Q. Lots? A.

Lots, yes, yes.

Q. There was a lot of stuff there if anybody wanted to plant things on you they could have got some of your stuff from the alcove and put it into the yellow haversack? A.

Wouldn’t have been — it’s not my haversack.

Q. But you are saying somebody has tried to plant things on you by putting a nondescript pair of pliers -A.

No, you’re telling me that.

Q. -- in this haversack? A.

You’re telling me that. I never suggested that at all.

Q. You say it is not your haversack? A.

No.

Q. Just that someone has written your name on it? A.

That’s right.

Q. Definitely not yours you say? A.

No.

Q. And someone has gone and done something dastardly like planting the Anschutz bolt wrapped up in a piece of material in it. That is what you are saying? A.

No, I’m not saying that.

[page 122] Q. Is that what you are telling the ladies and gentlemen of the jury, someone has gone to the trouble of getting this Anschutz bolt which we understand was used in one of the death scenes in the forest, wrapping it up in a piece of material that is exactly the same as the patterned material in your place and planting it in this yellow haversack with your name on it. Is that what you are saying? A.

No.

Q. What are you saying? A.

I’m saying I don’t know nothing about it.

Q. Did you put that yellow haversack in amongst your property in the alcove? A.

No.

Q. So someone else must have? A.

Correct.

Q. Did you write the name ‘Ivan’ on it? A.

No.

Q. So someone else must have? A.

Yes.

Q. Did you put the Anschutz rifle bolt in that bag? A.

No.

Q. So someone else must have? A.

Yes.

Q. Do you think that that someone was trying to plant evidence on you? A.

I don’t know. It’s not my bag so I can’t see how they’d try to plant on me.

Q. You have heard the evidence that the Anschutz rifle was used at one of the death scenes in the forest, haven’t you? A.

Yes.

Q. You acknowledge that you at least at one time owned that Anschutz rifle? A.

That’s right, yes.

Q. Have you got any explanation to give to the jury how that yellow haversack containing the Anschutz bolt and containing that piece of material came to be in amongst your property in the alcove? A.

I’ve got no explanation.

Q. Could you give the jury one single solitary explanation for how it came to be there other than that you placed it there? A.

No. I have no idea how it got there.

Q. Do you think somebody might have planted it to try to implicate you? A.

Somebody has put it in there definitely, yes. [page 123]

Persistence pays off 2.92 Here Tedeschi has just gone through a series of questions where the witness is being non-committal about how items of his came to be in the haversack, but by persisting in the expectation that the witness will maintain the ‘planting’ theory, he arrives at exactly that point with the answer to this question. Q. Is it the same person, do you think, who put the High Sierra day pack in there? A.

Could be.

Repetition for emphasis 2.93 The witness having maintained the ‘planting’ theory, Tedeschi now fires off a series of questions asking whether Milat contends that the ‘planter’ might be the same person who planted other items for which Milat has adopted the ‘planting’ theory. The repetition is very effective and highlights the incredibility of the position being maintained by the witness. Implicit in the questions is the suggestion that the ‘same person’ could only have been the witness himself. Q. Is it the same person who got into your house and planted the Ruger parts? A.

Could be.

Q. Is it the same person who put the receiver in your boot? A.

Could be.

Q. Is it the same person who put Simone Schmidl’s tent in your

garage? A.

Could be.

Q. Is it the same person who put the two sleeping bags in Shirley’s bedroom at [XXXXXXXX] Street [Eagle Vale]? A.

Could be. I don’t know nothing about it.

Q. Is it the same person who put the cook set in the kitchen at [XXXXXXXX] Street [Eagle Vale]?58 A.

I don’t know.

Q. Is it the same person who put the camera in the kitchen? A.

The camera has always been in our kitchen, so to speak. [page 124]

Q. Do you think this same person has done the dastardly act of planting an innocuous pair of pliers in your yellow haversack? A.

I don’t know.

Q. You think that might be yours, that magazine? A.

I’ve got similar ones, yes.

Q. There is a whole lot of those 45s? A.

Yes.

Q. They are empty cartridge cases? A.

That’s right.

Q. Are they yours? A.

I don’t really know. I’ve had a lot of empty 45 cartridge cases.

Q. Incidentally, the cartridges in the blue High Sierra day pack are copper tipped, are they not? A.

Yes.

Engaging the jurors by leaving it to them to make connections 2.94 Copper-tipped bullets were found in the High Sierra day pack and also in Milat’s home. In his evidence, the Crown witness Paul Onions had described the bullets in the revolver pointed at him by the man ‘Bill’ as copper;59 this connection is made by the crossexaminer without even mentioning Onions. Sometimes it is more effective to let the jury make their own connections — by not saying the obvious you can, in effect, show the jurors that you respect their capacity to see the obvious. It invites the jury to join with the crossexaminer’s line of thought; to ‘go with the cross-examiner’ as it were. This is a proper and effective communication technique that is well employed here. Q. And the 45 cartridges found at your place at [XXXXXXXX] Street [Eagle Vale] are also copper tipped, aren’t they? A.

Yes.

Q. Is this the case, that in the bedroom number 4 at [XXXXXXXX] Street [Eagle Vale] there was one unfired cartridge case and one fired cartridge case being 45 calibre, is that right? A.

They tell me.

Q. Found by the police. You have heard that evidence? A.

Yes, yes. [page 125]

Q. You do not dispute they were found in bedroom 4? A.

No.

Q. And they also were copper tipped, I am sorry, the unfired one was also copper tipped? A.

I don’t dispute that.

Q. And also found in bedroom 4 in the plastic bag, the same plastic bag that had the fired 22 cartridge case was some 45 calibre ammunition that was also copper tipped. Do you dispute that? A.

No.

Q. Amazing coincidences, aren’t they, Mr Milat? Do you agree? A.

Oh well, yes I suppose so.

Confronting the witness 2.95 This is a good example of not only confronting the witness with the force of the evidence, but also of obtaining the witness’s acknowledgment of its force. Q. Now would you have a look Mr Milat at this photograph I show you (shown exhibit BL.) It is in folder 7, tab C, page 23, shows the water bottle on the bed. You see that water bottle there?

A.

Yes.

Insinuating through probing that the witness had knowledge of an important incriminating item 2.96 The water bottle was found in bedroom 4 at Milat’s home in a box among some model paints and other items.60 When police examined it under the ‘Polylight’ technique, and photographed it, the name ‘Simi’ could be clearly seen.61 The bottle had been Simone Schmidl’s and someone had attempted to scratch her name off the bottle. The name was invisible to the naked eye. This was a powerful piece of evidence. Milat denied ever having seen it, an absurd stance for him to take given where it was found. The cross-examiner presses this point home by exploring how often Milat used the room. Q. You see there is a box called a F15E Seymour Johnson next to it? A.

Yes, yes.

Q. That is a model plane kit, isn’t it? A.

That’s right. [page 126]

Q. Is that your model plane kit box? A.

Yes.

Q. You have told us that you were into models and painting models camouflage colours? A.

That’s right.

Q. And is that your scope that is in the box? A.

Yes.

Q. Are these your gloves in the box? A.

That’s right.

Q. In fact are all those your items in the box? A.

Yes.

Q. Evidence has been given that that water bottle was also found in the same box. Do you remember seeing that water bottle? A.

In court here?

Q. No, in that box at your home? A.

No.

Q. Never saw it? A.

That’s right.

Q. How often did you go into bedroom 4? A.

Quite often I would say.

Q. Every day? A.

I would not say I went in there every day, but every now and again.

A.

Every now and then.

Q. You keep clothes in there? A.

No, it wasn’t really clothes in there.

Q. How frequently would you go in there? A.

Hard to say. About the only time — the only thing I’d really put in there was, say, my work bag.

Q. Your work bag that you took to work every day? A.

Yes.

Q. Well, did you ever walk in there and say to yourself: oh gosh. That’s a strange looking water bottle. I’ve never seen that before. Did you ever think that at all? A.

If I’d seen this I would have said that. [page 127]

Assuming this is correct, what then? 2.97 This last question is a good example of putting a proposition to the witness as to how they might have reacted if the evidence they have given were correct. If the witness is not being truthful, such questions will oft en raise issues they have never thought about, and they will struggle to deal with them coherently. Q. You would have, wouldn’t you? A.

Yes.

Q. When was the last time before the police came on 22 May 1994 that you walked in to that room? A.

If I walked into the house with me — my work bag, I probably went in there that Saturday night.

Q. Saturday night? A.

Yes.

Q. And if the water bottle had been in there on the Saturday night, do you think you would have noticed it? A.

Hard to say. I doubt if I would have. I would have only opened the door and pushed my bag in. That would be it.

Q. That would have been the last time that you would notice the water bottle, if it was there? A.

I never noticed the water bottle there.

Q. No, but if it had been there? A.

If?

Q. Yes, when do you think you would have noticed it? A.

How can I answer that?

Q. What I am asking you is, when was the last time you looked at the bed? A.

I never really paid any particular attention to the bed.

Q. Did you ever look at the bed? A.

Oh, I’ve no reason really — I just put my bag in.

Q. You told us that if it had been there you would have seen it? A.

If it was stuck like that, I suppose I would have.

Q. Well, when would you have seen it?

A.

I’ve got no idea.

Q. What — a week earlier, a month earlier, a year earlier — what? A.

If this water bottle was there -[page 128]

Q. If the water bottle was there, when would you have noticed it? A.

I still can’t see how I can answer that question.

Q. Give us within a range. Would you have noticed it a few days earlier, a week earlier, months — what — if it had been there? A.

When I walk into the house with my work bag, that’s about the only thing that I’d go in there for, on a regular occurrence. I would open the door, put my work bag in and that was it.

Q. Is there anything in the cupboard that you would use from time to time that caused you to turn the light on? A.

If I went in there at night time, if I wanted something, yes.

Q. Weren’t there papers in there on the dresser — didn’t you have all your papers in or on that dresser? A.

I had various — a lot of things in there.

Q. Didn’t you sometimes go in there because you kept all your papers there? A.

I didn’t say that.

Q. Sorry, didn’t you sometimes go in there because you had your

papers in there — I’m asking you? A.

Oh, I had my property in there, yes.

Q. But you had all your papers in there, didn’t you? A.

What papers?

Q. All your papers about insurance and registration and the house and your work and things like that — and the Ruger manual, all your papers were on that dresser and in the dresser, weren’t they? A.

No. You’re wrong.

Q. Was there anywhere else that you kept your papers in the house? A.

My personal papers, my registration papers and stuff similar to that — I’d keep in my bedroom.

Q. When — can you say when you would have noticed the water bottle if it had been there prior to 22 May 1994? A.

I can’t say anything about it.

Q. Can’t give us any idea at all? You can’t give us say for instance like within a month before that: I would have gone into the room, switched on the light, looked around and if it had been there I would have seen it — can you give us any indication like that? A.

I believe I was in there the previous night.

Q. I’m sorry? A.

When I came home Saturday, I’m sure I would have put my work bag in there. [page 129]

Q. Did you put the light on? A.

I wouldn’t — I couldn’t say so. All I would have done — just opened the door, pushed the door open.

Q. When was the last time that you went in there and put the light on? A.

I can’t really say.

Q. Have you got any explanation to give to the jury how this water bottle came to be in the model box with a whole lot of other items that belonged to you, on that bed? A.

I have no idea at all.

Q. Have you got any explanation to give to the jury how it came to be in that bedroom, apart from you putting it there? A.

No, I never put it there.

Q. No idea at all? A.

No.

Q. Well, you have seen this water bottle? A.

In court here.

Q. In court. A.

Yes.

Q. You have seen it has got a patch out of it? A.

Yes, I can see the patch out of it.

Q. In the photographs there is some sticky tape around that patch to stop it disintegrating. Have you seen that in the photographs?

A.

I believe I have seen it.

Q. There is sticky tape stuck over this patch, right? A.

Yes.

Q. Now if you didn’t put this in your bedroom, someone else did? A.

I agree with you.

Q. Now you have accepted that the only inference is that this was Simone Schmidl’s water bottle, right? A.

I believe it is.

Q. And in fact underneath some scratching on the water bottle it had got ‘Simi’ written on it? A.

That’s what they tell me, yes.

Q. You have seen the photographs of the Simi that has been brought up with a polylight, haven’t you? A.

That’s right. [page 130]

Q. Are you saying this was planted in your home? A.

Yes.

Q. So that whoever planted this in your home scratched out the name Simi to make the job that much harder — is that what you’re saying? A.

I don’t know what they did.

Undermining by pointing out absurdities 2.98 Milat maintains that someone has planted Simone Schmidl’s water bottle in bedroom 4. Yet Tedeschi points out the absurdity of someone planting a water bottle whose owner could only be ascertained by the use of police ‘Polylight’ scanning. Q. When it was put in your home it had the Simi scratched out so whoever has attempted to plant stuff on you has scratched out the Simi, is that right? A.

I don’t know. How would I?

Q. That is in fact what you are saying, isn’t it? A.

Well, I’d agree with what you’re saying but I wouldn’t have a clue what they did.

Q. All you say is, you didn’t scratch the name out? A.

Yes.

Q. So someone else did? A.

Yes.

Q. You think it might be the person who put it into your fourth bedroom? A.

I’d say that, yes.

Q. And someone has also put plastic over the patch? A.

I don’t know what they did.

Q. Why would anyone put plastic over the patch?

A.

I’ve never seen it before. I don’t know what you’re talking about really.

Q. Why would someone take out the patch for a start — why would someone cut it out? A.

It might have had a name there. I don’t know.

Q. If someone cut it out because it had a name on it, why would they do that? Why would they cut out the name? A.

I don’t know.

Q. Well, if it was Simone Schmidl’s and the name Simi was on it, can you think of any reason why someone might cut the patch out? A.

I don’t — I wouldn’t have a clue. [page 131]

Q. Can you think of any reason why someone, having cut the patch out, would want to put sticky tape over the patch? A.

When I read about that water bottle I believe — I think it was Mrs Murphy or something, she said she just wrapped tape around it because it was ripped. I don’t know what was there.

Q. Mrs Murphy? A.

Or one of the ladies that was up here, that had something to do with it.

Q. Ms Murphy gave evidence of buying an identical water bottle -A.

Where she was staying.

Q. -- to Simone Schmidl’s. That has been acknowledged as being Simone Schmidl’s water bottle. Can you think of any reason why someone would wrap tape around that? A.

No. The only reason I know anything about any tape --

Q. I withdraw what I said before. It wasn’t Miss Murphy, it was Jeanette Muller who bought an identical water bottle to this one, with Simone Schmidl in New Zealand? A.

I don’t know.

Q. Can you think of any reason why another person would put sticky tape over a patch? A.

I have absolutely no idea.

Q. Do you think it would be less likely to come apart if there were sticky tape around it? A.

The only reason I know there was tape around that, I read that lady’s statement.

Q. No, but do you think that somebody might have put sticky tape on it, to make it more useable? A.

How would I know what people are doing?

Q. Mr Milat, if you — let’s say you bought one like this at a disposal store and you got it home and thought, oh, gosh, there’s a patch in it — if you put sticky tape on that, that would make it more useable, wouldn’t it? A.

I’ve got no idea what you’re trying to tell me.

Q. Mr Milat, let’s think of a story. You go to a disposal store. You pay

over your money, buy one of these. You get it home and it has got a patch on it just like this one, okay? A.

I don’t know what sort of patch it had on it.

Q. Just listen to me. You buy a water bottle like this. You get it home and it’s got a patch on it like that, okay? A.

Exactly like that.

Q. Now, can you see any reason why you would put sticky tape over it, if it had a patch? A.

No. [page 132]

Q. Do you think it might be more useable to have a patch sticky taped over? Do you think it might be done by way of repair? A.

How would I know what people are going to do?

Q. No, but do you think that might be something that someone would do if they got -A.

Why would they want to buy a thing with a hole in it?

Q. Mr Milat, what I suggest to you is that you took this water bottle from Simone Schmidl? A.

No I didn’t.

Q. That you knew perfectly well that this water bottle was in bedroom 4 at your home in [XXXXXXXX] Street [Eagle Vale]? A.

No I didn’t.

Q. That you scratched out the name Simi? A.

No.

Q. That you cut out the patch, probably because it had a name on it? A.

No.

Q. That you stuck sticky tape over it so that you could use it? A.

No.

Q. And I suggest to you that you know perfectly well what has happened to this water bottle? A.

I have no idea what happened to the water bottle.

Q. Is this what you are asking the jury to accept — that someone has got access to your home and has deposited this water bottle, having fixed it up with sticky tape? A.

I don’t know what was on it.

Q. You have seen the photographs of the condition it was found in. You have seen them, haven’t you? A.

I’m sitting there. I seen photos. What they actually look like, I don’t know.

Q. Let me show you, photograph 28? A.

Why are you telling me I seen it?

Q. Behind tab C. Do you see that photograph?62 A.

Yes.

Q. Do you see it has got sticky tape over the patch?

A.

I could see it’s got sticky tape over it. Whether a patch is there, who knows.

Q. Do you think that somebody might have wanted to repair it so they could use it better? A.

How would I know what they were thinking? [page 133]

Q. Can you think of any other reason why a person would put sticky tape on a water bottle? A.

I have no idea.

Q. No idea? Okay. Would you have a look please at folder 7 behind tab B page 11. See that photograph?63 A.

The one with the money, yes.

Q. Now you have heard the evidence given by the police that that is foreign currency found in your bedroom, bedroom number 3? A.

That’s right.

Making important linkages and probing them — foreign currency 2.99 Foreign currency was found in Milat’s home. This was Indonesian money (Neugebauer and Habschied had backpacked in Indonesia before coming to Australia), New Zealand money (Schmidl had been to New Zealand before coming to Australia) and an English 20 pence piece was found in the console of Milat’s Jackeroo car (Clarke and Walters, and Onions, were from England).64 Tedeschi explores this

evidence; Milat appears to have difficulty explaining his possession of this money. Q. You are not going to tell us that you didn’t go into your bedroom, are you? A.

Pardon?

Q. You are not going to tell us that you didn’t go into your bedroom, are you? A.

Who didn’t?

Q. Did you use bedroom number 3 at [XXXXXXXX] Street [Eagle Vale]? A.

Yes, that’s my bedroom.

Q. And you told the police that was your bedroom? A.

That’s correct.

Q. And you told them the truth? A.

Yes.

Q. Now you have heard the evidence that that foreign currency was found in your bedroom? A.

I heard them say that, yes. [page 134]

Q. Have you got any explanation to give to the jury how some Indonesian currency came to be in your bedroom? A.

I’ve got no explanation how any Indonesian money was in my

bedroom. I had some Australian money and some New Zealand money. The police asked me about the New Zealand money that morning and that was about it. I have no idea how any Indonesian money got there. Q. You are not suggesting that the police planted that money on you, are you? A.

I wouldn’t suggest that at all.

Q. So, do you suggest that someone has put that — have you got any explanation to give to the jury how that Indonesian currency came to be in your bedroom? A.

Just what I’ve just told them, everything I recall about any money.

Q. Have you got any explanation how that Indonesian currency came to be in your bedroom? A.

I never seen any Indonesian currency. No one asked me about Indonesian money.

Q. Do you tell the jury the Indonesian money -A.

I’d imagine when Mr Leach talked to me about the New Zealand currency, if there was any other currency there, he would have asked me about that too.

Q. You have seen the photographs of the currency on something in your bedroom? A.

Yes, it looks like my quilt.

Q. That currency was found in your bedroom? A.

That’s what they’re saying.

Q. You are not suggesting that the police have loaded you up with it, are you? A.

I’m not suggesting that at all.

Q. So when do you think someone has put that money into your bedroom, prior to the police coming on the morning of 22 May 1994? A.

I have no idea. The money that I had in my drawer — the Australian money and the New Zealand money — that was in an envelope, a fairly large envelope and I had my passport, rego papers, personal things like that and there was — to my knowledge there was never any Indonesian money there.

Q. When do you think that came to be in your bedroom? A.

Well, whenever they took the photos too.

Q. I’m sorry? A.

Well, I can only assume when the photos were taken.

Q. You think the police brought it in? A.

I don’t know. I’m not thinking nothing. [page 135]

Q. I’m sorry, Mr Milat. I understood you to be making no allegations against the police that they brought that money into your -A.

I don’t know whether they brought it in there. I haven’t brought it in there.

Q. Well, Mr Milat -A.

I just find it strange that they never asked me about it, that’s all.

Q. Whether that was found in your bedside table -A.

I accept that because you’re telling me that.

Q. You would accept that? HIS HONOUR: No, he has said that you told him that. CROWN PROSECUTOR: Q. Do you accept that it was found in the drawer of your bedside table? A.

The police said they found it in there.

Q. And you don’t dispute that, do you? A.

That the police told me that --

Q. No, that they found it there? A.

I can, yes.

Q. You do dispute it? A.

I can, yes, because I’ve got no knowledge of it.

Q. But are you now saying that the police may have deliberately come into that house with Indonesian currency and planted it in your drawer? A.

No, I’m not saying that at all.

Q. Well, when do you say that someone has put that Indonesian currency in your drawer? A.

I’d have no idea.

Q. Well, when was the last time you used your drawer? A.

I use it every day, so to speak.

Q. And you open it up? A.

Yes.

Q. You put money into it or you put other things into it? A.

Sorry, this money was here?

Q. Yeah. A.

That would only be opened once in a blue moon, like say I want my rego papers or something like that. [page 136]

Q. So is this what you are saying, that — do you think there is a possibility that whoever came into your house and deposited the Ruger parts and the camping equipment and the water bottle and all the other items — slipped into your bedroom and put some Indonesian currency there? A.

No, I’m not saying that at all.

Q. Well, what are you saying? How did that currency come to be in your bedroom? A.

Are you mystified by it, because I am. I’m not trying to be funny, Mr Tedeschi, but I’ve got no idea how it got there.

When to ask for an explanation 2.100 This is a good example of inviting an explanation from the witness,

in the confident knowledge that none will be forthcoming. If the cross-examiner is not virtually certain that there is no plausible answer, then such a question should not be asked. But when the cross-examiner is certain, and knows that the answer will inevitably be a weak one, then this can be highly effective, as it was here. Q. No idea at all? A.

No sir.

Q. Can’t give the jury any explanation at all how the Indonesian currency came to be there? A.

No, I just find it strange that if it was there why wouldn’t they ask me about foreign currency.

Do not answer questions from the witness 2.101 On a number of occasions during the cross-examination, the witness has asked the cross-examiner a question. Tedeschi never responds with an answer (unless it is to clarify the question), but presses on with the questioning. This is the correct approach. To do otherwise almost always results in loss of momentum and gives undue importance to the witness’s question. Q. Mr Milat, I suggest to you that you knew perfectly well that Indonesian currency was there because you put it there? A.

I had no idea it was there.

Q. Did you take that Indonesian currency from Gabor Neugebauer and Anja Habschied? A.

I took nothing off them. I haven’t met them. I wouldn’t know who

they are. Q. Now would you have a look at this exhibit, that is exhibit GM, which is a 20p, 20 pence piece. You have heard the evidence that was found in your car? A.

Yes. [page 137]

Q. And the only explanation that you have been able to offer for that is that someone called Durinda from England came to visit you, is that right? A.

That would be the closest I could give.

Q. Is Durinda Chalinder’s sister? A.

Correct.

Q. And does she live in England? A.

Dubai.

Q. In Dubai? A.

Yes.

Q. So why would she have a 20p coin? A.

Why would she have a 20 pence coin?

Q. Yes, if she comes from Dubai? A.

Her parents live in England. She had a home in England as well. She travels to and fro quite often.

Q. And she has been in your car, has she? A.

She probably has. I can’t think of an actual time.

Q. She was tipping you with 20 pence coins, was she? A.

No.

Using sarcasm 2.102 This is effective here but, as noted previously, sarcasm should be deployed sparingly. Q. Have you got any explanation for why a 20p coin would be in your console, of your Jackeroo? A.

I’ve got no idea at all.

Q. No idea. Have you stolen it from some backpackers? A.

Definitely not.

Q. Did you get it from either Caroline Clarke or Joanne Walters or Paul Onions? A.

Pauline?

Q. Paul Onions? A.

No.

Q. There was a jacket in your Jackeroo, wasn’t there, in the back of the Jackeroo? A.

A green — yes.

[page 138] Q. That was yours? A.

Yes.

Q. It had the name Preston on it? A.

Yes.

Q. Who is Mr Preston? A.

I have no idea.

Q. Have you got a friend called Preston? A.

Yes.

Q. What is his full name? A.

John Preston.

Q. Does that jacket come from him? A.

No, oh I don’t think so.

Q. Where does the jacket come from? A.

Wally or Richard give me that jacket.

Q. Did you keep 22 bullets in it? A.

I kept bullets in the pockets, yes.

Q. Also found in your car was a barrel cap, exhibit KH?65 A.

I heard that, yes.

Q. Do you acknowledge that that fits the Anschutz? A.

They tell me it does.

Q. You don’t dispute that? A.

No.

Q. And also in one of the photographs of the console there’s a rubber glove, a surgical glove, not just a kitchen glove, but a surgical glove. Have you seen that photo? A.

I think I did. I seen it handed up. I never really — where I sit I can’t really see.

Probing the unusual; using the technique of ‘itemisation’ 2.103 A green surgical glove66 was found in the console of the Jackeroo — this was an unusual find indeed. Note how skillfully the crossexaminer explores with the witness the possible uses of a surgical glove, which would prevent the [page 139] wearer from leaving fingerprints. Milat denies any knowledge of this glove, yet Tedeschi reminds him that he owns many other items in the console. The denial of ownership of the glove stands out prominently and is very unconvincing. This technique of ‘itemisation’ of all the other items found in the same place is highly effective in such circumstances, and reveals the ‘odd thing out’ as an unlikely proposition. Q. Do you remember having a green surgical glove in your Jackeroo?

A.

No.

Q. Can you think of any reason why you would have had a green surgical glove in the Jackeroo? A.

Not one.

Only ask for an explanation when there is not a reasonable one 2.104 This is another good example of when this is a safe and effective question. The presence of a green surgical glove in the console of the Jackeroo was very unusual and a reasonable explanation was unlikely to be forthcoming. Q. Not one. Would you have a look at folder 7, tab H, photo 7. You see there are a whole lot of items in the console there. You see? A.

Yes.

Probing the ‘odd one out’ 2.105 As noted above, Tedeschi itemises, one by one, each of the many other items in the console and asks whether they are Milat’s. The witness agrees that they are, with the exception of the threaded barrel cap and the green surgical glove. Thus his denial of knowledge of the surgical glove and the threaded barrel cap makes them ‘odd ones out’ and this indicates that further exploration and probing may be of assistance to the cross-examiner. Q. Do you see there are some keys with a tag that says ‘Ivan’ — number 7?

A.

Yes.

Q. You see the keys with the tag ‘Ivan’?67 A.

Correct, yes.

Q. Are they your keys? A.

I would say they are.

Q. Well, are they your keys or not? A.

I don’t know whether it’s keys there or not. I see a key ring. [page 140]

Q. Do you see the writing on that tag? A.

Yes.

Q. Is that your tag? A.

It’s got my name on it.

Q. Is it yours? A.

Could be.

Q. Is the writing yours? A.

I don’t recognise it but I would say it probably is.

Q. Are the keys yours? A.

I don’t believe it’s a key.

Q. Well, whatever it is, is it yours?

A.

Yes, well it’s in me car.

Q. Is the torch yours? A.

Yes.

Q. Is the padlock yours? A.

Well, I can’t see a padlock but I would say yes, if it’s in there.

Q. Is the towbar ball yours? A.

That’s not a towbar ball but that round ball is.

Q. What is it? A.

It’s just a steel ball.

Q. Is the battery yours? A.

I imagine so.

Q. Is the pen yours? A.

Yes.

Q. Is that what looks like a bolt yours? A.

The nut you mean?

Q. The nut, yes I am sorry? A.

The nut, I suppose it is, yes.

Q. The piece of blue and white material, looks like a -A.

Handkerchief.

Q. Handkerchief or tea towel or something like that. Is that yours — it looks more like a tea towel? A.

I don’t know. [page 141]

Q. Is that yours? A.

Well, the tea towel?

Q. That blue and white material? A.

I don’t know, I suppose it is.

Q. Do you agree that all the items in there, putting aside the green plastic glove, are yours? A.

I imagine it all is, yes.

Q. But the green plastic glove, is that yours? A.

I ve never seen the green plastic glove before.

Q. Is it yours? A.

No.

Q. So it is one item in that photograph of the console of your car, a photograph taken of your car in the condition it was in on 22 May 1994, it is the sole item that is not yours, is that right? A.

Well the barrel cap I dispute whether that is mine in that too.

Q. The sole item — I suppose you can see the barrel cap too? A.

I believe I can.

Q. Put the barrel cap to one side, are all the rest of the items yours? A.

I imagine they are.

Q. What about the green plastic glove? A.

I can’t ever recall seeing it there.

Q. Is it yours? A.

I would say no.

Q. Is it the only item, putting aside the barrel cap for the moment, there that is not yours? A.

From what I can see I would say yes.

Q. Can you give the jury any explanation for why a green plastic glove would find its way into your console of your car? A.

Somebody must have put it there. I have got no personal knowledge of it.

Rhetorically asking for an explanation when there is none 2.106 This question invites the witness for an explanation, in the knowledge that there will be none given. Tedeschi asks such questions several times in this passage of the evidence to considerable effect.

[page 142] Q. When do you think somebody has put it there? A.

I would have no idea.

Q. Well, when was the last time you looked in your console? A.

Probably a week.

Q. A week earlier, was it there then? A.

No. I can’t recall seeing it there anyway.

Q. So a week before 22 May 1994 it was not there? A.

I am not saying it was not there, I just can’t recall whether it was there.

Q. Do you say it was put in there during that last week? A.

I never put it in there.

Q. Do you think somebody has put it there during that last week? A.

They could have put it there any time I suppose, whoever did.

Q. Can you think of any reason why someone would want to put a single green surgical glove in the console of your car? A.

I don’t know. All I know is I never had no green surgical glove in the car.

Q. Can you think of any reason why someone else would want to put a green single surgical glove into your car? A.

I would have absolutely no idea.

Q. Can’t think of any reason at all? A.

No.

Q. You think that someone else has put it there during that last week?

A.

I have no idea.

Q. Why would someone else put it there? A.

I would have no idea.

Q. Do you think somebody wanted to implicate you? A.

Implicate me in what?

Answering a question from the witness 2.107 This is one of the very few occasions Tedeschi answers the witness’s question, and it is done to amplify the original question and most dramatically so, by reminding the witness (and the jury) of much of the compelling evidence that emerged during the day’s crossexamination.

[page 143] Q. Implicate you in the same crimes that were involved with all the camping equipment, the Ruger parts, the Anschutz, the High Sierra day pack, the yellow haversack and all the other items that you have said you did not put where they were found. Do you think somebody might have wanted to implicate you by placing that rubber glove there? A.

I have got no idea what to do with – what rubber gloves has got to do with anything.

Q. If somebody did commit a crime, any sort of a crime, what use do you think a rubber glove would be? A.

A rubber glove?

The hypothetical question for the witness to answer that also carries an insinuation 2.108 This is a very effective use of the hypothetical question. If the crossexaminer had asked this question in a more direct and leading form (for example, ‘Wouldn’t a glove prevent a person leaving a fingerprint?’) the witness may have easily avoided giving an answer useful to the cross-examiner. But with the hypothetical question, pressed despite the witness’s apparent reluctance to answer it, the witness is forced to reveal the obvious use that could be made of a rubber glove by a criminal wishing to avoid detection. Q. Yes. A.

If they committed a crime, the only time I’ve seen anyone wearing rubber gloves really is these gentlemen here when they search people in the morning before we go to court, they wear rubber gloves.

Q. What benefit do you think there would be for a person committing a criminal offence in wearing a rubber glove or gloves. Can you think of any? A.

I have got no idea.

Q. What effect do you think it would have on fingerprints? A.

Again, a surgical rubber glove?

Q. Yes. A.

Well, I would not know. I imagine, seeing you are bringing it up now, is that it don’t leave fingerprints I suppose.

Q. Is that something you just thought of now? A.

Yes.

Q. You have never considered that possibility for a rubber glove before? A.

Definitely not. I always assumed actually that I thought it was suggested here that the police, when they were searching the car, they inadvertently left it there.

Q. No, that has not been suggested? A.

I think I have heard it at one stage or another in there. [page 144]

Q. In relation to this glove in the console of your car that has never been suggested? A.

Well, I must be hearing wrong. I know me hearing is a bit off but I thought something like that come up.

Q. I suggest to you that you knew perfectly well that that rubber glove was in the car? A.

I had no idea the rubber glove is in the car.

Q. And I ask you did you wear it by any chance in the crimes in the Belanglo State Forest in order to prevent fingerprints being left? A.

I wore no — I never seen the glove before.

Pressing opportunities that suddenly arise 2.109 Here, Tedeschi confronts the witness with the suggestion that he

may have worn a rubber glove for the crimes in the Belanglo State Forest. Milat’s intriguing answer commenced, ‘I wore no …’, and gave some people present in court at the time a strong sense that Milat was about to make a ‘Freudian slip’ and say something like, ‘I wore no gloves when I was in the forest’, but that is idle speculation because he did not say that. Nevertheless, it was a dramatic moment in the cross-examination that Tedeschi pursued with a few follow up questions. This is a good example of the effectiveness of pursuing new opportunities that unexpectedly arise from the witness’s answer. The timing was also dramatic in that it was the final line of questioning before the court adjourned for the day. Q. You wore no what? A.

Well I never wore that glove. I never seen it before.

Q. You were just about to say ‘I wore no’ and then you stopped. A.

I was going to say I wore no gloves at all.

Q. You wore no gloves at all in the forest, is that what you were going to say? A.

No, in the car.