R v Milat: A Case Study in Cross-Examination

British backpacker Paul Onions got away from Ivan Milat on 25 January 1990, after Milat pulled a gun on him after giving him a lift.  He ran off, zigzagging to avoid being shot to death and managed to hail a passing motorist as Milat’s shot missed him.  The police did not do anything much in response to his report and, tragically, Mr Milat was more successful with at least seven others who were in 1992 found murdered in the Belangolo State Forest.  One had been decapitated.

Well into the investigation prompted by the discovery of the bodies, Mr Onions identified Mr Milat as his attacker and gave a detailed and amazingly accurate account of personal characteristics which he had gleaned during the car journey and of Mr Milat’s vehicle.  Then many possessions of the victims were found in Mr Milat’s house. Weapons and ammunition too were found at his and family members’ houses which were associated by ballistics evidence with weapons and ammunition used in the murder of the victims.  Milat’s defence was that someone had tried to incriminate him by planting these things he had never seen before in his home.  He presented an alibi defence in respect of one of the murders.

Mark Tedeschi QC was Mr Milat’s prosecutor at the jury trial which resulted in Mr Milat being sent to jail for the rest of his life.  Dan Howard, now an SC, was his junior.  Mr Howard has published an annotated transcript of Mr Tedeschi’s cross-examination of Mr Milat.  As you can see it has a cheerful photograph of sun beaming into a lovely forest.  Mr Howard and LexisNexis Butterworths are to be applauded for doing so.  I hope there will be more, many more, including the annotation of a commercial trial.  Because cross-examination is a science which is, in my experience, very hard to pick up from reading advocacy texts.  Equally, one often sees evidence that it is an art which does not simply come with practice.  Those who have it, including Mr Howard, exhort aspirants to do the old fashioned thing and go watch great advocates at work.  But that too has its limitations: if one does not know intimately the evidentiary landscape, it is difficult to understand what you are watching.

Mr Howard’s book recognises and deals with that problem by providing a detailed exposition of the evidence in the case by way of a context for the cross-examination. The cross-examination went several days and is hundreds of pages long.  An ample collection of photographs allows exhibits referred to in cross-examination to be viewed as if one were a juror.

It is a dry book, notwithstanding its subject matter, probably inevitably so given the relationship of its author to the case.  The exposition of the Crown’s evidence by way of introduction is especially dry.  I worried as I read that in the casual way that I did whether I would be able to retain sufficient of it to understand the cross-examination.  I suspect that the introduction could be done differently: more briefly and more engagingly, because much of what is in the introduction is helpfully repeated for the reader’s benefit within the annotations themselves.

The overwhelming evidence against Mr Milat and the inherent absurdity of the allegation that someone had planted incriminating materials on him suggests to my comparatively untutored mind that his cross-examination was not going to make or break the prosecution. And, like most cross-examinations, nothing particularly forensically spectacular occurred, although there was one moment when one wonders whether Mr Milat nearly blurted out an aspect of the truth.  But in a sense, that makes its study all the more valuable, in contrast to the gems of cross-examination picked out in short passages in texts on advocacy.

This is undoubtedly a species of legal writing which ought to be encouraged and one of the things the many people who moan about the quality of advocacy might do in order to address it would be to generate many more such annotations.

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