Application by Maksimilian Bebic, Mile Nekic and Vjekoslav Brajkovic pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 1153

Application by Maksimilian Bebic, Mile Nekic and Vjekoslav Brajkovic pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 1153

The Court was comfortably satisfied that doubts or questions existed as to the evidence of Mr Virkez, the police evidence of confessional statements and explosives, the truthfulness and accuracy of Mr Cavanagh's evidence, the effect of information withheld from the defence, and the real possibility that the Yugoslav Intelligence Service used Mr Virkez as an agent provocateur or informer. The declassified ASIO documents and other important material emerging since the 2012 application constituted special circumstances justifying further action. The discretion under s 79(1)(a) was therefore exercised to direct an inquiry into all six convictions, including the three non-applicant convicted...

Jurisdiction
Australia
Judgment Date
30 August 2022
Procedural Posture
Application Under S 78(1) of the Crimes (appeal and Review) Act 2001 (nsw) for an Inquiry Into Convictions / Determination of Application on the Papers
Outcome
Application granted; inquiry directed.
Legal Topics
['inquiry Into Conviction' 'doubt or Question as to Guilt or Evidence' 'special Facts or Special Circumstances' 'fresh or Declassified Intelligence Material' 'public Interest Immunity' 'alleged Miscarriage of Justice']
['criminal Law' 'criminal Procedure' 'post Conviction Review'] ['inquiry Into Conviction' 'doubt or Question as to Guilt or Evidence' 'special Facts or Special Circumstances' 'fresh or Declassified Intelligence Material' 'public Interest Immunity' 'alleged Miscarriage of Justice']

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Procedural Posture

Application Under S 78(1) of the Crimes (appeal and Review) Act 2001 (nsw) for an Inquiry Into Convictions / Determination of Application on the Papers

Legal Issues

  1. 1 ["Whether it appeared that there was a doubt or question as to the convicted persons' guilt or as to any part of the evidence in the case under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW)." 'Whether the Court should refuse to consider or otherwise deal with the application because the matter had previously been dealt with and there were no special facts or special circumstances justifying further action under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW).' "Whether an inquiry should be directed into the convictions of only the applicants or also, on the Court's own motion, into the convictions of the three other men convicted in relation to the same offending."]

Ratio Decidendi

The Court was comfortably satisfied that doubts or questions existed as to the evidence of Mr Virkez, the police evidence of confessional statements and explosives, the truthfulness and accuracy of Mr Cavanagh's evidence, the effect of information withheld from the defence, and the real possibility that the Yugoslav Intelligence Service used Mr Virkez as an agent provocateur or informer. The declassified ASIO documents and other important material emerging since the 2012 application constituted special circumstances justifying further action. The discretion under s 79(1)(a) was therefore exercised to direct an inquiry into all six convictions, including the three non-applicant convicted...

Court Disposition

Application granted; inquiry directed.

Orders

  • ["After considering the application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) and on the Court's own motion, the Court directs pursuant to s 79(1)(a) of that Act that an inquiry be conducted by a judicial officer into the convictions on 9 February 1981 of Maksimilian Bebic, Mile Nekic, Vjekoslav...