Regina v Milakovic

LOWER COURT District Court JURISDICTION : LOWER COURT 04/21/3046 FILE NUMBER(S) : LOWER COURT Maguire DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60203/04 60225/04

GROVE J DOWD J SPERLING J

Monday 21 June 2004 REGINA v SINISA MILAKOVIC Judgment 1 GROVE J: On 17 May 2004 Sinisa Milakovic (the accused) was presented for trial before Maguire DCJ and a jury at Campbelltown District Court upon indictment charging wounding with intent to murder and an alternative to that charge. He pleaded not guilty on the ground of mental illness. The alleged victim is his wife. The Crown sought to call evidence to demonstrate that the accused was motivated to commit the offence by a belief that his wife was unfaithful which, it was intended to argue, would be inconsistent with the claimed mental illness. 2 In particular, on 18 May the Crown called the accused's father-in-law Stojan Bajic anticipating that he would testify along the lines of a statement given by him to an investigating police officer about four days after the incident giving rise to the charge. Two matters in the statement were in focus, first, that prior to the incident the accused had shown him a receipt and other documentation which he had found and which he said were related to a man whom he believed to be his wife's "boyfriend" and second, a later conversation in which he again identified this man and reiterated his belief that he was his wife's boyfriend. 3 When questioned by the Crown Prosecutor in chief, Mr Bajic stated that the receipt was found by him in his daughter's wallet at hospital, after the incident, and that the accused "did not talk anything at all" with him other than about unconnected matters concerning tiredness, his parents and sisters. 4 In the absence of the jury, the Crown Prosecutor applied for leave to cross examine Mr Bajic as an unfavourable witness pursuant to s38 of the Evidence Act 1995. Some evidence was taken on voir dire following which, for reasons given, the learned trial judge refused the application. The Deputy Director of Public Prosecutions forthwith signed, and on 24 May filed, notice of appeal pursuant to s5F(3A) of the Criminal Appeal Act 1912 appealing against: "Ruling that the Crown Prosecutor should not be given leave to cross examine Stojan Bajic, a prosecution witness, as his evidence was unfavourable to the prosecution case concerning matters referred to in paragraphs 15 and 17 of his statement of 30 October 2003." 5 The specific relief sought was the vacation of the "decision or ruling" made by Maguire DCJ (see s5F(5)(a)). On 26 May application for leave to appeal was filed on behalf of the accused seeking to challenge: "The ruling that the trial of the accused Sinisa Milakovic be adjourned to permit the Crown to pursue an appeal pursuant to s5F(3A) of the Criminal Appeal Act 1912." 6 This application was ultimately not pursued. 7 On 19 May, having been informed of the Director of Public Prosecutions' institution of appeal, Maguire DCJ discharged the jury. The accused was further remanded for trial. The Court was informed that this has been scheduled to commence on 12 July next at Sydney District Court. 8 An initial issue of the competency of the Crown appeal arises for determination. The Deputy Director of Public Prosecutions who appeared to support it confirmed that, as specified in the notice of appeal, reliance was exclusively placed upon the entitlement granted by s5F(3A) of the Criminal Appeal Act. That provision is in these terms: "(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case." 9 This provision came into effect on 14 February 2004. The question is whether a refusal of leave to cross examine pursuant to s38 of the Evidence Act is "a decision or ruling on the admissibility of evidence". It is common ground that there is no authority construing the scope of that expression as it appears in that provision. The Crown argument proceeded on the basis that the refusal of leave to cross examine Mr Bajic deprived the Crown of the ability to present to the jury the content of his prior statement. It was capable of evidencing the truth of what was contained: Adam v The Queen 2001 207 CLR 96 @ par 39(f). This contention merges the concept of a ruling with its potential consequences. The ruling related to an aspect of the conduct of the prosecution case, it was not a ruling on the admissibility of evidence. The circumstance that the Crown could identify the evidence that it wished to adduce did not alter the nature of the ruling. 10 A second obstacle to the Crown contention is the requirement that it be demonstrated that the decision or ruling (assuming it is in a given situation on the admissibility of evidence) eliminates or substantially weakens the Crown case. There is no case being currently tried either at the stage of preliminary or full hearing. It is not known whether Mr Bajic will or will not adopt the same stance in the forthcoming trial, if he is called. It is not known what the circumstances will be in which the presiding judge at that trial may be asked to make a ruling if an application under s38 of the Evidence Act is made. If these events occur, they will be dealt with by the presiding judge in accordance with whatever circumstances have arisen. The jurisdiction of this Court does not extend to an advisory opinion concerning something which might happen at a future trial. That does not undermine the jurisdiction which may be exercised where a trial is in progress for the purpose of pre-trial rulings specific to lis pendens. 11 It is not necessary to examine the reasons given by the learned trial judge for his ruling against permitting cross examination of Mr Bajic in the aborted trial, however, endorsement of them should not be inferred from the absence. 12 It may be useful to draw attention to two matters. Although I find no ambiguity in the expression of s5F(3A) it is instructive to note that in the second reading speech in Parliament introducing the amendment to the Criminal Appeal Act the Minister said: "If an acquittal results from an erroneous evidentiary ruling the Crown has no avenue of appeal against the acquittal. The Crown should therefore be able to test the correctness of such a ruling made during the trial, so that an accused may not derive the benefit of an acquittal secured as a result of an erroneous evidentiary ruling. It is not desirable that criminal trials be unnecessarily disrupted for the purpose of appealing evidentiary rulings. It is therefore anticipated that the Crown would exercise this new appeal power only sparingly".(Hansard 20 November 2003 pp 5427-5428) 13 Had Parliament intended the right of appeal to extend to matters other than erroneous evidentiary rulings, there would be no difficulty in so specifying in the drafting of the new provision. It was not so specified. 14 In the first appeal brought to this Court pursuant to s5F(3A) (R v NKS [2004] NSWCCA 144) the need for restraint was emphasized. It bears repeating. The jury having been discharged, there is not an extant risk of acquittal based upon any ruling made in the course of a now terminated trial. 15 During the passage of the Bill through Parliament which resulted in the legislation of s5F(3A), a Parliamentary Secretary in the Legislative Council, speaking for the Government and responding to expressed fears (and amendment moved) that the opportunity to appeal was too broad and would result in delays in justice and increased costs, said: "In practice, this appeal mechanism is likely to be used extremely rarely …….. Where the Crown has opposed a decision to exclude evidence and has strong grounds to support an argument that the exclusion of evidence substantially weakens the Crown case, the Crown will advise the trial judge and the trial will be adjourned. The jury is not discharged, as suggested by the Law Society, as an interlocutory appeal is normally heard within a few days - if not the day after the trial judge has excluded the evidence. It is correct that trials will be delayed for a short period while an interlocutory appeal is heard. However, in the course of trials, juries are regularly excused while voir dire hearings are held to determine questions of law particularly in relation to whether to admit evidence. Sometimes voir dire hearings can take many days". (Hansard 2 December 2003 pp 5538-5539). 16 The second matter of observation is the location of s38 in Chapter 2 of the Evidence Act which has an introductory note within it stating that the chapter is about ways in which evidence is adduced in distinction from Chapter 3, the introductory note to which states that that chapter is about whether evidence adduced in a proceeding is admissible. That distinction in the context of that legislation is fortifying of the conclusion that the ruling in the present case is not to be classified as a ruling on the admissibility of evidence. 17 The Crown appeal seeking to challenge the ruling under s38 of the Evidence Act being not a challenge to a decision or ruling on the admissibility of evidence, the appeal is therefore incompetent in terms of s5F(3A). 18 As noted, counsel expressly abandoned the application for leave to appeal filed on behalf of the accused. 19 I would order:

(a) Crown appeal dismissed as incompetent. (b) Leave to appeal by the accused refused. 20 DOWD J: I have read the reasons of Grove J in draft form. I agree with the orders proposed and his Honour's reasons. I have also read the draft judgment of Sperling J. I agree with that judgment.

21 SPERLING J: I have read the judgment of Grove J in draft. I agree with the orders proposed and broadly with his Honour's reasons. I would express my reasons for decision as follows.

Not a decision or ruling on the admissibility of evidence 22 A refusal of leave pursuant to s38 to cross-examine the witness is not a decision or ruling on the admissibility of evidence within the meaning of s5F(3). 23 The context of s38 in the Evidence Act 1995 is important. 24 Chapter 2 is entitled, Adducing evidence. That is to be contrasted with the heading of Ch 3, Admissibility of evidence. The distinction should be noted. 25 Chapter 2, Adducing evidence, is divided into parts, one of which, Pt 2.1, Witnesses, includes Div 4, Examination in chief and re-examination. The division contains ss37, 38 and 39. 26 Section 37, Leading questions, proscribes leading questions in examination in chief or in re-examination, with certain specified exceptions, including leave by the court. 27 Section 38, Unfavourable witnesses, provides that a party who has called a witness may, with leave, question the witness as though the party were cross-examining the witness, about certain specified matters including evidence given by the witness that is unfavourable to the party. 28 Section 39, Limits on re-examination, confines evidence in re-examination to matters arising out of evidence given by the witness in cross-examination, unless by leave. 29 A decision giving leave pursuant to s38 to cross-examine the party's own witness is not a decision as to whether certain evidence is admissible. It is, as the heading of Ch 2 suggests, a decision relating to the adducing of evidence, in contrast with the admissibility of evidence to which Ch 3 relates. More particularly, as the heading of Div 4 of Pt 2.1 of Ch 2 suggests, it is a decision concerning the way in which a witness may be questioned. 30 A decision to grant leave pursuant to s38 may result in certain evidence being adduced which would otherwise not be adduced. That, however, does not make the decision whether to grant leave a decision or ruling on the admissibility of the evidence.

Decision or ruling does not eliminate or substantially weaken the prosecutor's case 31 In terms of s5F(3A), an appeal lies under the subsection only if the decision or ruling eliminates or substantially weakens the prosecution's case. That is a question of fact for this court, the burden of proof lying on the appellant. 32 It cannot be found as a fact that the prosecution's case at the prospective trial is eliminated or substantially weakened by the decision. Apart from whether a judge at the prospective trial would necessarily adopt the decision under appeal in the same circumstances, the occasion for such a ruling might not arise at all or, if it does, might arise in circumstances which are materially different. 33 The appellant has not established that the decision under appeal will eliminate or substantially weaken the prosecution's case at the prospective trial unless it is quashed.

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