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R v Milakovic

R v Milakovic

Case [2004] NSWCCA 199 21 June 2004

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CITATION: Regina v Milakovic [2004] NSWCCA 199

HEARING DATE(S): Tuesday 15 June 2004

JUDGMENT DATE:
21 June 2004

JUDGMENT OF: Grove J at 1; Dowd J at 20; Sperling J at 21

DECISION: APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - INTERLOCUTORY APPEAL - A REFUSAL BY A TRIAL JUDGE TO ALLOW CROSS EXAMINATION OF A WITNESS AS UNFAVOURABLE UNDER s38 OF THE EVIDENCE ACT IS NOT A RULING ON ADMISSIBILITY OF EVIDENCE WITHIN THE MEANING OF THE CRIMINAL APPEAL ACT s5F(3A)

LEGISLATION CITED: Criminal Appeal Act 1912
Evidence Act 1995

CASES CITED: Adam v The Queen 2001 207 CLR 96
R v N.K.S. [2004] NSWCCA 144

PARTIES :
Regina v Sinisa Milakovic

FILE NUMBER(S): CCA 60203/04; 60225/04

COUNSEL: G. Smith (Crown/Applicant)
M. Dennis (Respondent)

SOLICITORS: S. Kavanagh (Crown)
Murphy's Lawyers (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3046

LOWER COURT
JUDICIAL OFFICER : Maguire DCJ

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Milakovic

Details

AGLC: R v Milakovic [2004] NSWCCA 199
Case: [2004] NSWCCA 199
Decision Date: 21 June 2004

CaseChat Overview and Summary

The appellant, Milakovic, was convicted of various criminal offences following a trial in the Supreme Court of Victoria. He appealed against the refusal of the trial judge to allow cross-examination of a witness. The issue before the court was whether the refusal of the trial judge to allow cross-examination of a witness was an adverse determination of a question of law with respect to the admissibility of evidence, within the meaning of section 5F(3A) of the Criminal Appeal Act 1995 (Vic). The court considered whether the refusal to allow cross-examination constituted a ruling on the admissibility of evidence.

The court concluded that the refusal by the trial judge to allow cross-examination of a witness was not a ruling on the admissibility of evidence within the meaning of section 5F(3A) of the Criminal Appeal Act 1995 (Vic). The court found that the refusal did not determine the admissibility of evidence but was rather a ruling on the manner and extent of cross-examination. The court held that the trial judge's decision did not constitute an adverse determination of a question of law with respect to the admissibility of evidence, and therefore the appeal was dismissed. The decision of the trial judge to limit cross-examination was upheld.

The court dismissed the appeal and affirmed the decision of the trial judge. The conviction of the appellant was upheld, and no further appeal lies to the Court of Appeal. The court's decision clarifies the scope of section 5F(3A) of the Criminal Appeal Act 1995 (Vic) and provides guidance on the circumstances in which an interlocutory appeal may be brought from a decision of the trial judge.

Orders