Regina v Milakovic [2004] NSWCCA 199
The Court held that refusing leave under s38 to cross-examine a witness as unfavourable concerns the manner of adducing evidence and not the admissibility of evidence itself. Therefore, such refusal is not appealable under s5F(3A) of the Criminal Appeal Act 1912. Further, the Crown failed to establish that the ruling would eliminate or substantially weaken its case at the prospective trial.
- Jurisdiction
- Australia
- Judgment Date
- 21 June 2004
- Procedural Posture
- Criminal Appeal / Interlocutory Appeal; Appeal From Pre Trial Ruling
- Outcome
- Appeal dismissed
- Legal Topics
- ['interlocutory Appeals' 'admissibility of Evidence' 'unfavourable Witnesses' 'section 38 Evidence Act']
Case Brief
Summary, issues, holding and outcome
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Procedural Posture
Criminal Appeal / Interlocutory Appeal; Appeal From Pre Trial Ruling
Legal Issues
- 1 ["Whether a refusal to allow cross-examination of a witness as unfavourable under s38 of the Evidence Act 1995 constitutes a 'decision or ruling on the admissibility of evidence' within s5F(3A) of the Criminal Appeal Act 1912" "Whether the Crown's appeal is competent under s5F(3A)"]
Ratio Decidendi
The Court held that refusing leave under s38 to cross-examine a witness as unfavourable concerns the manner of adducing evidence and not the admissibility of evidence itself. Therefore, such refusal is not appealable under s5F(3A) of the Criminal Appeal Act 1912. Further, the Crown failed to establish that the ruling would eliminate or substantially weaken its case at the prospective trial.
Court Disposition
Appeal dismissed
Orders
- ['Crown appeal dismissed as incompetent.' 'Leave to appeal by the accused refused.']
Full Case Text
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