16 The decision in R v Milakovic is distinguishable. There, the Court held, at [9] and [22]-[30], that a ruling which refused the Crown leave to cross-examine a Crown witness under s.38 Evidence Act 1995 was a ruling related to an aspect of the conduct of the prosecution case and not a ruling on the admissibility of evidence. The decision in R v Milakovic was relied upon in R v RAG [2006] NSWCCA 343 at [11] in support of the conclusion that a decision that a witness was not competent to give unsworn evidence under s.13(2) Evidence Act 1995 was not a ruling on the admissibility of evidence.
17 In R v RAG, at [12]-[14], the Court distinguished R v Steffan and subsequent decisions of the Court where R v Steffan has been applied in the context of attempts to appeal under s.5F against rulings under Chapter 3 of the Evidence Act 1995 concerning the admissibility of evidence. In my opinion, the statutory scheme set out at [14] above supports the conclusion that the ruling that s.306I applied to the tender of evidence at a special hearing was a ruling on the admissibility of evidence. The reasoning in R v RAG supports this conclusion.
18 It should be observed that the Crown was the appellant in R v Milakovic and R v RAG under s.5F(3A), which provides expressly for a Crown appeal against a ruling on the admissibility of evidence in certain circumstances. That provision does not extend to an appeal under s.5F by an accused person.
19 Further, I am satisfied that the ruling in this case did not constitute an interlocutory judgment or order for the reasons advanced in the submissions of the Crown (at [12] above).
20 Of course, the grant of a certificate under s.5F(3)(b) does not operate to overcome the jurisdictional difficulty confronting the Appellant: R v Lavender at [1]; Kocer v R at [23].