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Court of Criminal Appeal 21 June 2004

Regina v Milakovic

[2004] NSWCCA 199

Assault & violence
CRIMINAL LAW AND PROCEDURE INTERLOCUTORY APPEAL

Citation: Regina v Milakovic [2004] NSWCCA 199
Court: Court of Criminal Appeal, New South Wales
Date: 21 June 2004
Judge(s): Grove J, Dowd J, Sperling J

Background

The accused was presented for trial in the District Court at Campbelltown on charges of wounding with intent to murder. He pleaded not guilty on the ground of mental illness. The Crown sought to establish that the accused had been motivated by a belief in his wife's infidelity, which it argued was inconsistent with the mental illness defence.

To advance that argument, the Crown called the accused's father-in-law as a prosecution witness. The Crown anticipated he would give evidence consistent with a statement he had made to police shortly after the incident. In that statement, the witness had recounted two conversations with the accused in which the accused expressed a belief that his wife had a "boyfriend." When examined in chief, however, the witness gave evidence that contradicted material parts of that statement.

The Crown applied, in the absence of the jury, for leave to cross-examine the witness as an unfavourable witness under s 38 of the Evidence Act 1995. The trial judge refused that application. The Crown then filed a notice of interlocutory appeal under s 5F(3A) of the Criminal Appeal Act 1912. The jury was discharged and the matter was scheduled for retrial.

  • Whether a trial judge's refusal to grant leave to cross-examine a witness as unfavourable under s 38 of the Evidence Act 1995 constitutes "a decision or ruling on the admissibility of evidence" within the meaning of s 5F(3A) of the Criminal Appeal Act 1912.
  • Whether, even if such a ruling could qualify, the Crown had established that it eliminated or substantially weakened the prosecution's case, as required by s 5F(3A).

Decision

The Court of Criminal Appeal dismissed the Crown's appeal on the threshold question of competency. The Court held that a refusal of leave to cross-examine a party's own witness under s 38 of the Evidence Act is not a ruling on the admissibility of evidence. Rather, it is a decision about the manner in which a witness may be questioned, which falls under the "adducing of evidence" provisions in Chapter 2 of the Act, as distinct from Chapter 3, which governs admissibility.

Grove J observed that the Crown's argument impermissibly merged the nature of the ruling with its potential consequences. The fact that the content of the witness's prior statement might, if admitted, have been capable of evidencing the truth of its contents did not transform the procedural ruling into an admissibility ruling. The legislative purpose of s 5F(3A), as reflected in the Minister's second reading speech, was confined to erroneous evidentiary rulings capable of producing an acquittal. Had Parliament intended a broader right of appeal, it could have said so.

The Court also found a separate, independent obstacle to the Crown's appeal. Even accepting the Crown's characterisation of the ruling, the requirement under s 5F(3A) that the ruling eliminate or substantially weaken the prosecution's case had not been established. The trial had been aborted and a new trial was pending. It was unknown whether the witness would be called again, whether he would give the same evidence, or whether the circumstances at the new trial would give rise to a s 38 application at all. The Court reiterated that its jurisdiction does not extend to delivering advisory opinions about events that might occur in a future trial.

The Court also repeated the caution from the first appeal brought under s 5F(3A), emphasising that the power should be exercised only sparingly and that the discharge of the jury had removed any immediate risk of acquittal based on the impugned ruling.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A refusal to grant leave to cross-examine a party's own witness as unfavourable under s 38 of the Evidence Act 1995 is not a "decision or ruling on the admissibility of evidence" for the purposes of s 5F(3A) of the Criminal Appeal Act 1912. It is a decision about the manner in which evidence is adduced, not about whether evidence is admissible.
  • The Crown's interlocutory appeal power under s 5F(3A) is limited to rulings on admissibility, reflecting Parliament's intent to address erroneous evidentiary rulings capable of producing an acquittal, not all adverse procedural rulings during trial.
  • Under s 5F(3A), the Crown must also establish, as a matter of fact, that the ruling eliminates or substantially weakens the prosecution's case. Where the trial has been aborted and a new trial ordered, this requirement cannot be satisfied by speculating about what may occur at the forthcoming trial.
  • The Court of Criminal Appeal confirmed that it lacks jurisdiction to issue advisory opinions about rulings that might be made in a future trial. Each ruling must be assessed in the circumstances in which it arises.
  • In dismissing the appeal, the Court reiterated the emphasis from earlier authority that s 5F(3A) should be invoked only sparingly, consistent with the legislative intent expressed during parliamentary debate.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A), s 5F(5)(a)
- Evidence Act 1995 (NSW), s 37, s 38, s 39

Cases:
- Adam v The Queen (2001) 207 CLR 96
- R v NKS [2004] NSWCCA 144