Citation: Regina v Milenkovic [2005] NSWCCA 382
Court: NSW Court of Criminal Appeal
Date: 26 September 2005
Judge(s): McClellan CJ at CL; Hislop J; Rothman J
Background
The respondent was on trial in the District Court, charged with the armed robbery of a Westpac Bank branch at Five Dock. During the trial, the Crown sought to tender evidence of the respondent's alleged involvement in a separate planned armed robbery of a Westpac Bank branch at Leichhardt. The trial judge, Boulton ADCJ, refused to admit that evidence.
The Crown brought an urgent interlocutory appeal to the Court of Criminal Appeal under the Criminal Appeal Act 1912, seeking both to appeal the evidentiary ruling and to obtain a stay of the trial pending that appeal. The application was heard on the same afternoon the ruling was made, with the Court having limited time to examine the trial judge's reasons in full.
Legal Issues
- Whether the Court of Criminal Appeal should grant a stay of the District Court trial pending the determination of the Crown's interlocutory appeal against the evidentiary ruling
- Whether the trial judge erred in excluding evidence of the respondent's alleged involvement in a related planned armed robbery
Decision
The Court of Criminal Appeal granted the stay on an urgent basis, without fully resolving the Crown's broader submission that a stay will almost invariably be appropriate whenever a Crown appeal is brought under the relevant provisions of the Act. The Court found it unnecessary to determine that wider proposition because it was satisfied, from the brief arguments put to it, that a stay was warranted in the circumstances.
The Court's reasoning centred on the risk of injustice if the trial continued while a significant portion of the Crown's evidence remained excluded pending appeal. A stay was seen as necessary to preserve the utility of the appeal. The Court confined the stay to a very short period, directing that the full appeal be heard the following afternoon with an expectation of same-day determination.
The Court also made a suppression order prohibiting publication of its reasons and orders until further order, consistent with the ongoing trial proceedings.
Orders Made
- Application for stay granted until the determination of the Crown's interlocutory appeal
- Appeal fixed for hearing at 2:00pm the following day
- No publication of the reasons or orders made, or any further orders in relation to the appeal, until further order
Key Takeaways
- The Court of Criminal Appeal confirmed it has jurisdiction to hear urgent Crown interlocutory appeals against evidentiary rulings made during a District Court trial, pursuant to the Criminal Appeal Act 1912.
- A stay of trial proceedings may be granted where, without it, the Crown's interlocutory appeal would be rendered futile by the trial continuing with significant evidence excluded.
- The Court expressly left open the Crown's broader proposition that a stay should almost automatically follow a Crown interlocutory appeal under the Act, finding it unnecessary to resolve that question on the facts before it.
- Procedural urgency does not preclude a stay: the Court granted relief on the same afternoon as the impugned ruling, having had only limited time to examine the trial judge's reasons.
- Suppression of reasons and orders is available in this context to protect the integrity of ongoing trial proceedings.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5F(2) and 5F(3A)
Cases cited: None identified in the provided text.