On 16 September the Supreme Court found Who Weekly magazine guilty of contempt for publishing Ivan’s photograph. The magazine was fined $100,000 and its editor, Thomas Moore, was fined $10,000. The court found that the photograph was ‘likely or calculated or had a tendency’ to interfere with Milat’s trial. The magazine indicated that it intended to seek special leave to appeal, but in February 1995 leave was refused by the High Court.
Having dismissed John Marsden, Ivan hired a new solicitor, Andrew Boe from Queensland. Boe had only six years’ experience in criminal cases but owned two Porsches, attracting comment from some Legal Aid solicitors in Sydney.
The committal proceedings began on 24 October 1994 at Campbelltown Local Court before Mr Michael Price, with Boe instructing Brisbane barrister Catherine Holmes. The media, both inside and outside the court, outnumbered the public. Ian Lloyd QC, opened the prosecution case, observing that the brief of evidence against Ivan, although circumstantial, was strong. It included Paul Onions’ identification of Ivan; Ivan’s possession of property belonging to some of the victims; Ivan’s possession of articles similar to those found at the crime scenes; his possession of ammunition identical to that fired at the crime scenes; his possession of firearms or firearm parts connected to fired cartridge cases and bullets discovered at the crime scenes; his possession of a sash cord and pillowslip marked with blood that had a very high probability of being that of Caroline Clarke; a modus operandi indicating that each murder was committed by the same offender(s); and opportunity by Ivan in all matters.
Minutes before the lunch adjournment, a bomb threat interrupted proceedings. The magistrate adjourned proceedings, although the threat turned out to be a hoax.
Witness after witness gave evidence for the prosecution, all of it damning of Ivan. Ivan’s ex-wife described him as ‘gun crazy’; after running around his brother’s property shooting a revolver like a cowboy he gave himself the nickname ‘Texas’. She said he often carried a loaded gun tucked inside his right sock, contradicting Ivan’s claim never to have owned a firearm. Her evidence that Ivan liked to engrave his name, nicknames and initials on items he owned linked him to property belonging to the murder victims.
Ivan’s barrister, Catherine Holmes, aggressively attacked the prosecution case, putting forward alternative explanations for the damaging evidence: some victims had been seen alive after being reported missing; Alex Milat had made a statement to police about Clarke and Walters that showed Ivan was not involved; and so on. Many thought she was doing a good job, given the overwhelming evidence against Ivan. Then, at the opening of the thirteenth day, Holmes abruptly informed the magistrate: ‘Your worship, I no longer have instructions in the matter and I seek leave to withdraw.’ With that, Holmes left the court: Ivan had sacked his second lawyer.
Andrew Boe sought a three-week adjournment to enable him to find another barrister. The application was refused, the magistrate telling Boe that seven witnesses from Germany were waiting to give evidence. (They included relatives of the three German backpackers, Anja Habschied, Gabor Neugebauer and Simone Schmidl.) ‘These witnesses have come halfway around the world at the request of the defence,’ he said. ‘The defence wanted the opportunity to cross-examine these witnesses.’ The prosecutor added that two Dutch girls were due to arrive in Sydney and were set down to give their evidence in the next two days. Boe was granted one day to prepare for his cross-examination of witnesses.
In the absence of a new barrister, Boe led Ivan’s defence until the arrival of Brisbane barrister Terry Martin on 22 November. The problem was that Martin did not have a certificate to practise in New South Wales. When Martin’s application to represent Ivan was refused, Boe again sought an adjournment, which was also refused. He then withdrew from the case and left the court, leaving Milat to defend himself.
Invited by the magistrate to sit at the bar table, Ivan complained, ‘I can’t defend myself . . . you’ve got all these charges on me and now you expect me to defend myself. I’m a road worker. Don’t you read the newspapers, I’m not a solicitor.’ Ivan then asked for an adjournment, but his request was refused. The court was in disarray, with Ivan still objecting and no one quite knowing what was going to happen next. After a short time, Boe returned to the court, declaring that Ivan would suffer ‘extraordinary prejudice’ if left to defend himself. A few days later Martin also returned, the problems of his practising certificate having been sorted out.
A month into the committal, I was called to give evidence. Boe began by asking some rather mundane questions about the investigation, the raids and the decision to arrest Ivan. We had always anticipated that one of the defence’s tactics would be to cast doubt on which of the Milat brothers was guilty. Boe knew and we knew that being able to single out Ivan as the killer was critical. The incident that led us to focus on Ivan, I said, was the attempted abduction of Paul Onions: Ivan fitted both the personal background and physical description given by Onions, and Ivan’s vehicle matched the vehicle described by Onions. Boe responded by pointing out that some of Ivan’s brothers also fitted the description. I agreed that ‘to varying degrees’ Boe’s suggestion was correct, but added, ‘I don’t believe any other member owned a silver four-wheel-drive with a white top and a red stripe down the side.’
As soon as I left the witness box the prosecutor announced that the Crown case was closed. While conceding that there was ‘sufficient prima facie evidence’ to commit Ivan for trial, the defence used Alex’s evidence to argue that Ivan could not have killed Caroline Clarke and Joanne Walters; it claimed there had been sightings of the pair after they were supposed to have been murdered; that other people, perhaps including members of the Milat family, had been involved in the murders; and that Ivan had been framed by the police. An adjournment was sought so that at least ten witnesses who claimed to have seen the pair could be called, but the application was rejected.
On 12 December, after a 27-day hearing, the magistrate, Mr Price, observed: ‘What this court has heard over recent weeks is but the prosecution’s case as tested in cross-examination. The accused person is yet to stand his trial and have the factual issues determined by a jury of twelve.’ With that, Ivan was committed to stand trial for the murder of seven backpackers and the attempted murder of Paul Onions.
During the hearing 172 witnesses—including around 30 from overseas—gave evidence; and 201 witness statements, 225 exhibits and nearly a thousand photographs were presented. The committal hearing produced almost 2000 pages of transcript.
Outside the court, Boe told the media he was concerned that Ivan wouldn’t get a fair trial because of the media coverage that had been given to the hearing. The Milat case, he said, was a strong argument of ‘untested allegations’ that should not have received the ‘degree of publicity and have this overbearing impact on the minds of potential jurors’.
Due to the large number of exhibits, all items had been recorded and stored in a dedicated exhibit room at Campbelltown Police Station. Once Ivan was committed for trial, the exhibits were transferred to a custom-built secure cage at the Sydney Police Centre.
12
TRIAL
After leading the prosecution of Ivan Milat through the committal proceedings at Campbelltown, the senior Crown prosecutor, Ian Lloyd QC, took a year’s leave of absence to work in Cambodia with the United Nations, training Cambodian judges and prosecutors. He was replaced by an equally well-respected and capable lawyer, Deputy Senior Crown Prosecutor Mark Tedeschi QC.
Far from having ended with Ivan’s committal for trial, the investigation continued for another seventeen months, almost up until the day Ivan’s trial began. As a result of disclosures during the committal, a further 67 witnesses were interviewed and included in the prosecution case for trial.
During those seventeen months the defence made appeals to the Supreme Court, the Court of Criminal Appeal and the High Court in relation to various issues including: an application for each offence to be tried separately; the refusa
l of the director for Public Prosecutions to agree to a trial by judge alone; and the inadequacy of Legal Aid funding. The first two appeals were rejected; the third was partially resolved in favour of Ivan.
The trial of Ivan Milat began on 11 March 1996 under Justice David Hunt. At least one task force officer was in court at all times supplying information and managing the exhibits, and a response team was permanently on hand to conduct immediate follow-up investigations arising from the evidence given on any day.
The hearing began with two weeks of legal argument before the jury of eight men and four women was empanelled on 25 March. Tedeschi acknowledged that the prosecution case was circumstantial, but argued it was a strong case with fourteen ‘circumstances upon which the Crown relies’. These were:
1. Ivan was in possession of a substantial amount of the deceased backpackers’ property at his house at [Eagle Vale], among his own property in an alcove under Walter Milat’s house, and at his mother’s house at Guildford where he was living at the time of the murders.
2. Ivan owned the Ruger 10/22 that was used to shoot Caroline Clarke and Gabor Neugebauer.
3. Ivan was in Area A of the forest at the same time, or at much the same time, as Gabor Neugebauer when he was shot with Ivan’s Ruger 10/22, because his Anschutz rifle was used there.
4. The Winchester Winner ammunition found with Ivan’s property in the alcove under Walter’s house had the same batch number as that apparently used in Area A, where Gabor Neugebauer was shot, having been manufactured during a one-day shift at the Winchester factory at Geelong.
5. The Winchester Winner ammunition with an ‘H’ head stamp found in the accused’s bedroom and in the spare room at [Eagle Vale], and the Winchester Subsonic ammunition with a ‘W’ head stamp found with the accused’s property in the alcove under Walter’s house, were consistent with cartridges and cartridge cases found in Area A, where Gabor Neugebauer was shot.
6. The batch number on Eley ammunition found with Ivan’s property in the spare room at [Eagle Vale] corresponded with that on an Eley box found in 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. Ivan had a handmade silencer in his garage at [Eagle Vale] and had stated an intention to buy a factory-made one.
8. Ivan left his Nissan with his neighbour, Mr El-Hallak, to repair the damage caused by a bullet having been discharged inside it, just over a week after Anja Habschied and Gabor Neugebauer disappeared.
9. Ivan was in possession of a piece of rope that was used in the murder of Caroline Clarke.
10. The components of the leash device at the Neugebauer scene were all available to Ivan at his home in [Eagle Vale].
11. Industrial recycled rags were used in the killings of Walters, Habschied, Neugebauer and Schmidl and in the storage of some ballistics.
12. Ivan carried a Bowie knife in his car that could have been used to stab the victims.
13. All seven murders followed the same pattern.
14. Ivan’s attack upon Paul Onions was a thwarted attempt to take him into the Belanglo State Forest where he was to be killed.
(For a detailed ‘Summary of circumstances implicating Ivan Milat in the seven backpacker murders and the abduction of Paul Onions’, see Appendix 1.)
As a result of evidence given at Ivan’s committal proceedings, his legal team made several admissions of fact, the most critical of which were:
• Nine items of clothing and backpacker equipment allegedly found at the Eagle Vale home shared by Ivan and his sister, Shirley, and one item of backpacking equipment allegedly handed to police by Elizabeth and Alex Milat at West Woombye ‘were in the possession of Simone Schmidl at or immediately before her death’.
• Four items of backpacking equipment allegedly found at Richard Milat’s property at Hill Top ‘were in the possession of Caroline Jane Clarke at or immediately before her death’, and one item of backpacking equipment allegedly found inside a garden shed ‘was in the possession of Joanne Walters at or immediately before her death’.
• One camera and one item of backpacking equipment allegedly found at Galston Gorge ‘were in the possession of James Harold Gibson at or immediately before his death’.
As a result of these and other admissions by the defence, the number of trial witnesses was culled to 150. Statements and depositions by a further 25 witnesses were tendered during the trial. More than 300 exhibits were tendered, many comprising numerous items. One exhibit, for example, comprised 180 pages and photographs. Numerous schedules were tendered by agreement, principally to assist the parties to follow the case.
Despite admitting that certain items of clothing and backpacking equipment belonged to four of the seven murder victims, Ivan denied any connection with the backpackers themselves. He variously claimed that the property found at Eagle Vale had been planted; that it came from the family home at Guildford; that it ‘points to Shirley’; that it had nothing to do with him; and that a British coin ‘possibly belongs to a relative of Chalinder Hughes’.
No admissions were made by Ivan or his lawyers about property owned by Paul Onions. His explanation for a shirt identified as belonging to Onions was that it had been found at the Guildford home.
Nor were any admissions made about any of the guns or ammunition recovered by the task force at any of the Milat family homes. Ivan insisted that he had no knowledge of weapons found in the walls of his home; that he had not bought a Ruger but his brothers could have used one; that he did not own an Anschutz rifle but had sold one to Walter; that Walter owned other weapons; that weapons found by police at his and Walter’s homes had been planted there; that ammunition of the type used in the killings had been bought in bulk with his brothers; and that Walter owned silencers.
Ivan’s attempt to deny ownership, possession and knowledge of weapons by blaming his brother Wally ran into problems when Wally was called by the prosecution and gave evidence against Ivan. In particular, Wally gave evidence that all of the weapons and equipment found in the alcove under his house at Hill Top, which the prosecution argued belonged to Ivan and incriminated him in the murders, had come from Ivan’s house in Eagle Vale in the weeks before his arrest. When called by the prosecution, Richard Milat supported Wally’s version of events. He had been involved with Wally and Ivan in moving the weapons and equipment from Eagle Vale to Wally’s property.
When he was later called as the first witness for the defence, Ivan was asked why he had moved weapons, ammunition and other property to Wally’s place in the weeks before his arrest. He said, ‘I had heard the police were making inquiries about some of my guns and that is the main reason and also for better security.’
When it was put to Ivan that his possession of such large quantities of property belonging to the eight backpackers ‘are amazing coincidences’, Ivan replied, ‘Oh, well, yes I suppose so.’ He went on to say that he wasn’t suggesting the police had planted anything on him, but ‘someone’ had. One implication was that it was a member of the Milat family, possibly Wally or Richard.
Ballistics expert Detective Sergeant Gerard Dutton swore that of the ten bullets recovered from and under the head of Caroline Clarke, eight were consistent with having been discharged from a Ruger 10/22 rifle (the other two were too damaged to identify positively). All ten cartridge cases found had been discharged from a Ruger 10/22, to which the Ruger bolt assembly found in the wall cavity in the Eagle Vale house had been fitted. The bolt assembly had been fitted to the rifle that was used to shoot Caroline Clarke and Gabor Neugebauer. Two other ballistics experts, Detective Superintendent Ian Prior of the Australian Federal Police and Mr John Barber, a former forensics expert in the New South Wales Police, supported Dutton’s findings. (For a summary of the ballistic and other evidence connecting the Ruger rifle parts to the murders and Ivan, see Appendix 2.)
Ivan admitted having bought the Anschutz rifle found in the alcove un
der Walter Milat’s house, and its bolt located in a yellow haversack in the same alcove, but claimed he had sold it to Wally a short time later. Evidence from the three ballistics experts was that 46 cartridge cases found 165 metres from Gabor Neugebauer’s body in what searchers labelled Area A of the Belanglo State Forest were consistent with having been fired from the Anschutz rifle and bolt. Detective Superintendent Prior went further, stating that two of the cartridges had been fired from Ivan’s Anschutz rifle and bolt. (For a summary of the ballistic and other evidence connecting the Anschutz rifle to the murders and Ivan, see Appendix 3.)
During the trial Ivan was given an alibi for 26 December 1991, the day Anja Habschied and Gabor Neugebauer were last seen. It was said he was at a family gathering at the house in Guildford and could not have been involved in the abduction and murder of the two backpackers. Carolynne Milat, the wife of Ivan’s brother William, said that she had arrived at the Guildford house between 1 p.m. and 1.30 p.m. on Boxing Day and had left between 6.30 p.m. and 7 p.m. She said Ivan had been at the house all that time; he could not have left without her knowing because her car blocked the garage where his was parked. William confirmed his wife’s version of the gathering and Ivan’s attendance.
A photograph, dated Easter 1992, found in an album at Carolynne and William’s home in Bargo, showing a Milat family gathering at Wombeyan Caves, appeared to give Ivan an alibi for the period when Caroline Clarke and Joanne Walters were last seen. Police had found the picture when they searched the property in May 1994. An examination of other pictures of the same family gathering revealed they were in fact dated a year earlier. Carolynne claimed to have changed the date on the photo after noticing that she was wearing a pair of shoes she was sure she had bought after Easter 1991. Was the change of date a simple mistake, or was it an attempt to provide an alibi for Ivan for the murders of Clarke and Walters? (The album was seized the day after Ivan’s arrest.) The prosecution argued that on both occasions Carolynne’s alibi evidence was not credible.
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