Regina v Milenkovic [2005] NSWCCA 382

New South Wales Court of Criminal Appeal

CITATION: Regina v Milenkovic [2005] NSWCCA 382

HEARING DATE(S): 26 September 2005

JUDGMENT DATE: 26 September 2005

JUDGMENT OF: McClellan CJ at CL; Hislop J; Rothman J

DECISION: Application for stay granted until determination of appeal

CATCHWORDS: CRIMINAL LAW - Crown appeal against interlocutory judgment - admission of evidence - stay granted

LEGISLATION CITED: Criminal Appeal Act 1912

Crown (Appl) PARTIES: Vladimir Milenkovic (Resp)

FILE NUMBER(S): CCA 2005/1016

G Rowling (Crown/Appl) COUNSEL: A Haesler SC/M Gelbert (Resp)

Solicitor for Public Prosecutions (Crown/Appl) SOLICITORS: Brendan Duchen Solicitors (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1422

LOWER COURT JUDICIAL OFFICER: Boulton ADCJ

IN THE COURT OF CRIMINAL APPEAL 2005/1016

McCLELLAN CJ at CL HISLOP J ROTHMAN J

MONDAY 26 SEPTEMBER 2005 REGINA v Vladimir MILENKOVIC Judgment 1 McCLELLAN CJ at CL: This matter comes before the Court this afternoon by way of an urgent application by the Crown which has filed an appeal pursuant to s 5F(3A) and s 5F(2) of the Criminal Appeal Act, 1912. 2 The circumstances are that the respondent has been indicted on a charge of armed robbery of a branch of the Westpac Bank at Five Dock. The trial has commenced and the Crown has sought to tender evidence of the respondent's involvement in another armed robbery planned for a Westpac Bank branch at Leichhardt. The trial judge has refused to admit the evidence for reasons which this Court has not had the opportunity to fully explore in the time available this afternoon. 3 The Crown submitted that it would only be in rare circumstances where an appeal brought under the Act as presently constituted would not lead to this Court granting a stay. The fundamental proposition is that without a stay being granted an injustice may occur because the trial may continue in circumstances where a significant portion of the Crown evidence might be excluded. 4 It is not necessary for us to resolve that submission today because we are satisfied from the arguments which, in the short time available, have been adumbrated that a stay should be granted. However, that stay will be confined to a short period so that the full argument can take place and the matter be resolved and the trial allowed to continue. 5 Accordingly, we have determined that the application for a stay will be granted until the determination of the appeal. We fix that appeal for hearing at 2pm tomorrow afternoon with the expectation that it will be concluded and determined tomorrow afternoon. 6 We further order that there be no publication of the reasons or orders made today, or further orders in relation to this appeal until further order is made. **********