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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
Date: 21 June 2004
Judge(s): Grove J, Dowd J, Sperling J

Background

The accused stood trial in the Campbelltown District Court on charges of wounding with intent to murder, pleading not guilty on the ground of mental illness. The Crown sought to establish that the accused was motivated by a belief in his wife's infidelity, a line of evidence intended to undermine the mental illness defence.

The Crown called the accused's father-in-law as a witness, expecting him to give evidence consistent with an earlier police statement about conversations he had with the accused regarding a suspected boyfriend of the accused's wife. In the witness box, the father-in-law gave evidence that contradicted that statement in two material respects. The Crown Prosecutor applied to the trial judge for leave to cross-examine the witness as unfavourable under s 38 of the Evidence Act 1995.

The trial judge refused the application. The Crown then filed a notice of interlocutory appeal under s 5F(3A) of the Criminal Appeal Act 1912, which permits the Attorney General or Director of Public Prosecutions to appeal against decisions or rulings on the admissibility of evidence where the ruling eliminates or substantially weakens the prosecution's case. The trial judge discharged the jury following notification of the appeal.

Legal Issues

  • Whether a refusal to grant leave under s 38 of the Evidence Act 1995 to cross-examine a witness as unfavourable 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 fall within s 5F(3A), the Crown had established that the ruling eliminated or substantially weakened the prosecution's case at any prospective trial

Decision

Issue 1: Whether the ruling was one on the admissibility of evidence

The Court held unanimously that a refusal of leave to cross-examine under s 38 is not a decision or ruling on the admissibility of evidence. The distinction lies within the structure of the Evidence Act itself: Chapter 2 addresses the adducing of evidence (the process of questioning witnesses), while Chapter 3 addresses the admissibility of evidence. Section 38 sits in Chapter 2, within a division concerned with examination in chief and re-examination.

Grove J reasoned that the Crown's argument conflated the ruling itself with its potential downstream consequences. The fact that refusing leave may prevent certain prior-statement evidence from reaching the jury does not transform the nature of the ruling into one about admissibility. Sperling J agreed, observing that a leave decision under s 38 is a decision about the manner of questioning, not about whether evidence is admissible. The Parliamentary second reading speech reinforced this, indicating the provision was directed at erroneous evidentiary rulings, with no suggestion of a wider reach.

Issue 2: Whether the ruling eliminated or substantially weakened the prosecution's case

The Court found a further, independent obstacle to the Crown appeal. Even if the ruling were characterised as one on admissibility, the Crown had not established on the facts that it eliminated or substantially weakened the prosecution's case at the prospective trial. The original trial had been aborted and a new trial was scheduled. Whether the father-in-law would be called, whether he would give the same evidence, and whether a s 38 application would again be made in materially the same circumstances were all unknown. The Court noted that its jurisdiction does not extend to delivering advisory opinions about rulings that may or may not arise in a future trial.

Orders Made

  • Crown appeal dismissed as incompetent
  • Leave to appeal by the accused refused

Key Takeaways

  • A refusal to grant leave under s 38 of the Evidence Act 1995 to cross-examine a witness as unfavourable is not a "decision or ruling on the admissibility of evidence" for the purposes of s 5F(3A) of the Criminal Appeal Act 1912, and therefore does not ground a Crown interlocutory appeal under that provision.
  • The structural distinction within the Evidence Act between Chapter 2 (adducing evidence) and Chapter 3 (admissibility of evidence) is significant: s 38 belongs to the former and governs the manner of questioning, not the admissibility of evidence.
  • A ruling's potential consequence, such as preventing prior-statement evidence from being adduced, does not alter the character of the ruling itself; the Crown's argument that consequences determine the nature of a ruling was expressly rejected.
  • 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 is pending, that burden cannot be satisfied by reference to speculative future events.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced the earlier caution expressed in R v NKS that the s 5F(3A) interlocutory appeal power was intended to be exercised only sparingly, and does not extend to an advisory jurisdiction over rulings that might be made at a future trial.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated