[align=left]On .. October, 1963, the Applicant lodged both a plea of nullity
(Nichtigkeitsbeschwerde) against the conviction, and an appeal
(Berufung) against the sentence imposed. In the plea of nullity the
Applicant submitted that the trial court had violated the law by
rejecting several of his requests to take further evidence.

The Applicant had requested, in particular:

(1) to hear as a witness the police officer who had directed the
investigation against him, Major W., and to have examined the casts of
footprints taken by the police on the scene of the crime and to have
then compared with his own shoes;

(2) to have examined by an expert all the woollen blankets used by him
during the first night of his arrest as being the possible source of
his finger-nail dirt, allegedly stemming from the victim's wollen vest;

(3) to hear a number of neighbours of his, with whom he had gone to
work in the same bus on the morning after the crime and who would be
able to testify that the Applicant had not been together with another
witness, V., allegedly travelling in a different bus, who had testified
that the Applicant had told him on the bus on that morning that he had
come home in the night only at two o'clock. The Applicant had also
requested to hear these neighbours on the question whether he had
talked at all with another witness, U., who also said he had heard from
the Applicant, however, in the bus indicated by the Applicant himself,
that he had come home at two o'clock. Because of the contradictions
between the evidence given by V. and U., the Applicant had also laid
charges of perjury against them on .. December, 1962, but the charges
had been dismissed by the Regional Court in Korneuburg on .. February,
1963;

(4) to hear his doctor who had treated him at the time of the crime for
acute rheumatism, as a witness that he had been physically incapable
of carrying and lifting the body of the victim as alleged;

(5) to hear the policeman who was responsible for the report on his
reputation read out in court;

(6) to hear the wife of a neighbour to whom he said he had mentioned
himself on the day after the crime, the fact that he had taken along
a woman in the car the night before;

(7) to have the finger-nail dirt examined by a second expert in view
of contradictions in the opinion given by the first expert. He also
criticised that the first expert had not been sworn before beginning
the examinations.

On .. February, 1964, after having received written and oral submission
both from the prosecution and from the defence, the Supreme Court
sitting in public session, however, without the Applicant being present
in person, rejected both his plea of nullity and his appeal.

The Supreme Court considered the Applicant's grounds for his plea of
nullity as ill-founded for the following reasons:

(1) The Applicant had not specified sufficiently the questions as to
which Major W. should have been heard. The mistakes of the police in
their investigations, which the Applicant had alleged, were not
essential since not the police report but the evidence given in court,
was the basis for his conviction. As to the comparison of the
footprints and of his shoes, the Applicant had not expressly requested
that this comparison should be made by an expert. The court itself had
made such a comparison but found that no sufficiently certain
conclusions were possible.

(2) As to the examinations of the blankets used by the Applicant during
the night after his arrest, the Supreme Court stated that there had
been no indications that any of these blankets had been scorched, so
that there was no possibility that the threads found under the
Applicant's finger-nails, and allegedly coming from the partly burnt
vest of the victim did, in fact, come from the blankets.

(3) As to the neighbours who according to the Applicant could have
proven the falseness of the evidence given by the witnesses V. and U.,
the Supreme Court stated that, in fact, all these persons had been
heard by the police upon instruction of the trial court, that none of
them had been able to give clear evidence on the point at issue, and
that the report on these enquiries had been read out at the trial. The
Supreme Court observed that the Applicant and his defence counsel had
not insisted subsequently on an examination of these witnesses in
court, and that the procedure followed was in accordance with its own
jurisprudence.[/align]