: R v Milat: A Case Study in Cross-Examination

R v Milat: A Case Study in Cross-Examination

Tim McGrath

Howard-r-v-milat-cross-exam-smDan Howard; LexisNexis Butterworths, 2014; $139 (paperback)

Dan Howard SC has produced a compelling text, which lives up to its title A Case Study in Cross-Examination. The dreadful deeds of Ivan Milat (aka the Backpacker Murderer) continue to resonate within our national psyche. The discovery of the first victim, and then the next, led to the gradual realisation that something truly awful had been taking place in the Belanglo State Forest. The investigation, arrest and trial of the larger than life Milat gripped the attention of the public. A true horror story, and the genesis of fictional offspring such as the ‘Wolf Creek’ franchise.

I chose this book as holiday reading; a break from the practice of commercial litigation. It was something of a shock therefore to discover that the book consists, for the most part, of the unabridged transcript of the cross examination of Milat by senior crown prosecutor Mark Tedeschi QC. Don’t get me wrong; court work is, by its nature, unpredictable and exciting. One of my great disappointments however, is the inherent inability of a transcript to capture the excitement, the nuance and tension of court room drama. Once the dust has settled and the transcript emerges, it can be nothing but a jumble of words on a page; confused when one party talks over another, and an otherwise lifeless account of the proceedings.

In this instance, my fears were unfounded. Dan Howard has done a great job with this book. For the casual reader, like me, he has included a comprehensive introduction. It recounts, in confronting detail, the crimes committed and the progress of the police investigation, overlaid with the evidence of some of the crucial witnesses and the key exhibits. The introduction is very effective in positioning the reader in the trial, at the close of the prosecution case. One is armed with a knowledge of the crown’s case, and some idea of the limited avenues open to the defence to challenge the evidence and to, perhaps, posit an alternative explanation for that evidence which cannot be discounted. It is at that point that the reader is introduced to the trial transcript.

Having been so well prepared, the reader is able to appreciate the tension which develops as each series of questions unfolds. The author is precise in the timing of the various observations which punctuate the transcript. Where cross examination might appear to be dull and overly repetitious, Howard points out the importance of groundwork, maintaining control, and an insistence upon obtaining a direct answer from the witness. Conversely, where the witness’ answer is compelling, the importance of timing. Allow the jury time to absorb the evidence, and don’t ask one question too many.

As someone involved in trial work from time to time, the author’s observations provided an interesting opportunity for me to reflect upon my own past experiences. In the face of such a capable and forensic examination of the work of one of this country’s foremost trial counsel, those reflections were valuable, but not always comfortable.

In the preface to the book, Dan Howard himself sets the standard by which he believes books of this nature should be judged; if they contain substantial passages from the trial transcript, then they are likely to avoid sensationalism, and offer some helpful lessons. His book passes with flying colours. It is an engaging and valuable exploration of the art of cross examination. It is recommended reading for anyone contemplating a career at the bar, and should be embraced by those practitioners who wish to further develop and improve skills already possessed.

TIM McGRATH is partner at Miller Harris Lawyers. He practises in commercial litigation and dispute resolution.
(2015) 40(1) AltLJ 67
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