Krivosic v The King - [2024] NSWCCA 166

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Krivosic v R [2024] NSWCCA 166
Hearing dates: 17 June 2024
Date of orders: 06 September 2024
Decision date: 06 September 2024
Before: Mitchelmore JA at [1];
Garling J at [107];
Wilson J at [109]
Decision:
(1)   Leave is granted to extend the time for filing the notice seeking leave to appeal to 6 February 2024.
(2)   Leave to appeal is granted.
(3)   The appeal is dismissed.

Catchwords:
CRIME — appeals — appeals against conviction — murder — whether miscarriage of justice — whether Liberato direction complete or effective — where evidence of applicant from previous trial tendered — where both parties rely on evidence of applicant —trial judge directions sufficient in particular circumstances — no miscarriage of justice

Legislation Cited:
Crimes Act 1900 (NSW), s 18
Evidence Act 1995 (NSW), ss 38, 90
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71
Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44
Harper v R [2022] NSWCCA 211
Hewitt v R [2021] NSWCCA 227
Johnson v Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
R v Anderson [2001] NSWCCA 488; (2000) 127 A Crim R 116
R v Krivosic (No.5) [2021] NSWSC 1566
Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16

Category: Principal judgment
Parties: Marko Krivosic (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Stratton SC / T O’Rourke (Applicant)
G Newton SC / S Traynor (Respondent)
Solicitors:
Jamieson Criminal Law (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/228553
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), publication of the image or name of “SJ” or “AB” or any material that would identify them in connection with the current proceedings is prohibited until 31 December 2041.
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

3 December 2021

Before:

Johnson J

File Number(s):

2018/228553

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 3 December 2021, the applicant was convicted following a jury trial before Johnson J on a charge of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).

On 22 July 2018, the applicant, armed with a pistol and in the company of another person, AB, attended a unit in Warwick Farm and shot the deceased in the back, killing him. The Crown case was that the applicant deliberately fired the pistol at the deceased, with the intention to kill or very seriously physically harm him. The applicant contended that the jury would not be satisfied beyond reasonable doubt that his firing of the pistol was deliberate, claiming that it was an involuntary act in a highly stressful situation. His case was that he attended the unit to assist his friend after he was informed that his friend was being assaulted by the deceased.

Prior to the trial before Johnson J, another trial took place in April 2021 before Harrison J and a jury, in which the applicant gave evidence. The jury in that trial was unable to reach a verdict. In the trial before Johnson J, the Crown tendered the applicant’s evidence from the first trial, and it was relied on by the Crown and the applicant. The Crown relied on admissions the applicant made about his actions preceding the shooting, including that he brought a loaded pistol with him, he wore dark clothing and gloves, and he pointed the loaded pistol directly at the deceased as soon as he entered the unit with his finger on the trigger. The applicant accepted that he aimed the pistol at the deceased but relied on his evidence to the effect that he only fired the pistol because AB put his hand on the applicant’s shoulder, startling him and causing him to discharge the weapon.

In summing up to the jury, the trial judge emphasised that the onus rested on the Crown to prove every matter necessary to establish guilt beyond reasonable doubt. His Honour directed the jury that, in considering whether the Crown had satisfied this onus, it was necessary for the jury to consider the evidence in the case as a whole. The applicant had the right to remain silent and the jury was to assess the applicant’s evidence from the first trial in the same way as the evidence of any other witness. The trial judge further stated that if the jury believed there was a real possibility that what the applicant said about accidentally discharging the pistol was true, the jury was bound to acquit him. Alternatively, if the jury was satisfied beyond reasonable doubt that the discharge of the pistol was a deliberate act, they should move to the other elements of murder.

The applicant sought leave to appeal on the ground that the trial judge erred in failing to give a complete or effective Liberato direction in summing up to the jury. The focus of the appeal was the third limb of the direction, which was not given. The applicant submitted that the trial judge should have given a modified form of that limb of the direction.

The Court (Mitchelmore JA; Garling and Wilson JJ agreeing), granting leave to appeal and dismissing the appeal, held:

The Liberato direction is concerned to ensure that a jury does not conceive of its task as involving a choice between competing accounts, and understands that its task is to determine the question of whether the State has proved its case beyond reasonable doubt: at [95].
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48; Johnson v Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531; R v Anderson [2001] NSWCCA 488; (2000) 127 A Crim R 116 applied. Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 considered.
In the present case, neither the Crown nor the applicant put the case as one that involved a choice between the applicant’s evidence and the evidence of other witnesses: at [101]. Rather, both parties relied, relevantly, upon the jury accepting parts of the applicant’s evidence from the first trial, viewed against all of the surrounding circumstances. Having regard to the way in which the case was prosecuted and defended, a direction consistent with the third limb would have been apt to confuse the jury, which the applicant accepted: at [97].
Harper v R [2022] NSWCCA 211 considered.
The trial judge’s direction was appropriate in the particular circumstances of the case: at [102]. The modified third limb direction for which the applicant contended focused upon the applicant’s evidence regarding the discharge of the gun. The absence of such a direction did not give rise to a risk that the jury would consider its role as one of choosing between the applicant’s evidence and the evidence of other witnesses on that issue; and a direction that focused solely on that part of the evidence would not have reflected the manner in which the parties put their respective cases: at [102]. The direction that the trial judge gave emphasised the second limb of the Liberato direction, namely, that the jury did not need to reach a positive state of acceptance of the applicant’s evidence before they must acquit: at [105].
Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71 distinguished.

JUDGMENT

MITCHELMORE JA: On 3 December 2021, the applicant, Marko Krivosic, was convicted following a trial before Johnson J, sitting with a jury, on a charge of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The applicant appeals from his conviction on a single ground: that the trial judge erred in failing to give a complete or effective Liberato direction in summing up to the jury. The applicant seeks leave to file his notice of appeal after the expiration of the filing period, which was not opposed, and that leave should be granted. There was a dispute about whether leave to appeal was otherwise required.
There was no dispute in the trial that on 22 July 2018, the applicant, armed with a pistol and in the company of another person, attended a unit in Warwick Farm. It was also not in dispute that the applicant shot the deceased in the back, killing him. The Crown case was that the applicant deliberately fired the pistol at the deceased, with the intention to kill or very seriously physically harm him. The applicant contended that the jury would not be satisfied beyond reasonable doubt that his firing of the pistol was deliberate, as opposed to an involuntary act in a highly stressful situation.
The trial before Johnson J was the second trial of the applicant on the charge of murder. The first trial had taken place in April 2021 before Harrison J and a jury. The applicant gave evidence in that trial. The jury was unable to reach a verdict.
The applicant did not give evidence in the second trial. Over the objection of the applicant, the Crown tendered his evidence from the first trial in its case. The trial judge ruled that the evidence was relevant on the basis that it contained admissions and that s 90 of the Evidence Act 1995 (NSW) should not be applied to exclude it: R v Krivosic (No. 5) [2021] NSWSC 1566.
Ultimately, the applicant’s evidence from the first trial was read out to the jury during the second trial, and both the applicant and the Crown relied on it. The Crown relied on the admissions that the applicant made, including that: he attended the unit wearing dark clothing and latex gloves; he deliberately obscured his face and avoided CCTV cameras; he had armed himself with a pistol that, to his knowledge, was loaded and had the safety catch off; and when he entered the unit, he aimed the pistol at the deceased. The Crown contended that those circumstances, and his flight after the event, pointed to the applicant having the intention to kill or very seriously physically injure the deceased, as retribution for an incident outside the unit that same afternoon during which the deceased assaulted a friend of the applicant, Andre Marques.
The applicant, on the other hand, submitted to the jury that he came to the unit on the afternoon of 22 July 2018 to assist Mr Marques, having received a phone call from someone at the unit who informed him that Mr Marques was being assaulted by the deceased. The applicant submitted that he thought his friend was in danger, prompting him to attend the unit at short notice and with the loaded weapon. He accepted that he aimed the pistol at the deceased, but relied on evidence he gave at the first trial to the effect that he only fired the pistol because the man in whose company he arrived at the unit, AB, put his hand on the applicant’s shoulder shortly after he entered, causing him to startle and discharge the weapon.
It was common ground on the appeal that a Liberato direction was required. The issue was the form in which it was given. In De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 (“De Silva”) at [12], a majority of the High Court stated a preference to refine the Liberato direction along the following lines:

“… (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?”

The focus of the appeal in the present case was the third limb of this formulation. The applicant accepted that in circumstances where both he and the Crown relied on the evidence he gave at the first trial, the trial judge could not give a direction that was precisely in accordance with the terms of that limb. Nonetheless, he submitted, the trial judge should have given a modified direction. Following the hearing of the appeal, the applicant provided a form of direction that he submitted would have sufficed and could have been given.
The Crown submitted that the form of Liberato direction that the trial judge gave conformed to the particular circumstances of the trial. A direction of the nature that the applicant sought was neither necessary nor appropriate.
The Crown also submitted that leave to appeal was required, on the basis that the question was not solely one of law and on the basis that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applied, because the applicant’s counsel at trial did not object to the form of direction that the trial judge ultimately gave.
As to the nature of the ground of appeal, in Hewitt v R [2021] NSWCCA 227 at [65], Payne JA (Garling and Wright JJ agreeing) held that a ground of appeal alleging a miscarriage occasioned by the failure to give a full Liberato direction was purely a question of law. However, the Crown submitted that the ground of appeal in the present case necessarily engaged the circumstances in which the Liberato direction was given, such that leave to appeal was required. Even if that submission were correct, I would grant that leave.
As to r 4.15, the applicant conceded in his written submissions that the rule applied. Senior Counsel resiled from that concession at the hearing, on the basis of the manner in which this issue evolved in the trial. As I will set out below, the applicant’s trial counsel originally submitted that the third limb of the Liberato direction should be given. When the trial judge ultimately adopted a position that was contrary to that submission, the applicant’s counsel did not seek to be heard further. Senior Counsel for the applicant on the appeal submitted that the fact that trial counsel did not cavil with his Honour’s approach at that point did not render the rule applicable. There is force in that submission. That said, as will be seen below, the direction that was advanced on the appeal did not reflect the broader direction that the applicant’s trial counsel sought unsuccessfully in the court below, such that r 4.15 applies.
For the reasons set out below, while I would grant the applicant leave to appeal, I would dismiss the appeal.

Background to the appeal

In order to evaluate the Liberato direction that was given in the present case, it is necessary to set out the respective cases of the Crown and the applicant and the evidence in the trial in some detail, starting with the evidence of the witnesses other than the applicant before addressing his evidence separately.
Early in 2018, animosity developed between the deceased and Mr Marques when the deceased found out that Mr Marques had a brief sexual relationship with the deceased’s partner, Taylah Papadellis, when the deceased was overseas. Mr Marques gave evidence that in or about February or March 2018, there was an incident in which the deceased “pretty much kidnapped” him, detaining him for about eight hours and demanding payment of $50,000. During this episode, the deceased subjected Mr Marques to significantly humiliating conduct, which was recorded. Mr Marques gave evidence that he did not tell anyone what had happened to him, but a number of other witnesses gave evidence that the recording of the incident had been circulated. In about June 2018, Mr Marques had a conversation with the deceased in which they agreed to let the incident pass. The deceased apologised and said he was having relationship difficulties with Ms Papadellis; Mr Marques offered to assist if he could, although he avoided the deceased’s subsequent telephone calls.
SJ was the occupant of the unit in which the deceased was killed. SJ met the applicant through Alana Delforce, who attended the unit a couple of times on 22 July 2018 (there was evidence that SJ was unwell that day). In the course of 22 July 2018, SJ received a number of other visitors, as shown on CCTV footage from the car park of the unit block and other entry points.
The deceased attended the unit with Mark Salama in the afternoon of 22 July 2018; CCTV footage from the car park showed their arrival by car at 4.30pm (the deceased immediately exited the car and entered the lift, Mr Salama followed some eight minutes later). A car conveying Mr Marques, Mirko Pajic and his girlfriend, Erika Krupljanin, arrived in the car park at 4.45pm. While still in the car park, that group encountered Ms Papadellis (who had arrived separately) and the four of them travelled in the lift up to SJ’s unit. According to Mr Marques, it was the deceased who opened the door.

The incident between Mr Marques and the deceased

When Mr Marques went to walk into the unit, the deceased pushed him aside. The deceased let Ms Papadellis, Ms Krupljanin and Mr Pajic into the unit before moving into the corridor outside the unit with Mr Marques. The deceased spoke to Mr Marques in an aggressive tone, accusing him of not helping the deceased as he had said he would, and demanding money. Mr Marques gave evidence that the deceased then struck him, causing Mr Marques to fall to the ground, after which the deceased proceeded to kick him. Mr Marques’ recollection was that a number of people came out of the unit when he was being kicked, including Mr Salama, Ms Delforce, Mr Pajic and Ms Krupljanin.
At 4.49pm, Ms Delforce sent a text message to the applicant which said, “Oi wanna help me get all these gronks out of Stacey’s”, and a further message, at 4.50pm, which said, “If your [sic] not busy.” In a statement to police dated 23 July 2018, parts of which were put to her during her evidence, Ms Delforce had said that after hearing yelling in the hallway, she had run into the hallway and yelled “stop stop stop”, which she said caused “whatever they were doing” to stop. She then returned inside the unit. Once back inside, at 4.53pm, Ms Delforce called the applicant. Her statement to police set out that she said to him, “I think one of your friends has drama at the moment”. According to Ms Delforce, the applicant replied “I have my own things to deal with” and hung up.
SJ gave evidence that she heard Ms Delforce’s side of this phone call and recalled Ms Delforce saying, “I’m at Stacey’s, hurry, they’re bashing Andre”. At the end of the call, SJ asked Ms Delforce who was on the phone, and Ms Delforce told her it was the applicant. At 4.55pm, Ms Delforce sent the applicant a further text message, which said, “Please hurry”. Between 4.55pm and 4.57pm, she and the applicant exchanged five messages regarding contact details for an unrelated individual. At 4.57pm, Ms Delforce sent the applicant two further text messages. The first message said, “I don’t know I heard yelling and your mate on the ground with gorge [sic] kicking him. I yelled out atop and they did”. The second message said, “I don’t know what’s going on but yeah.”
The CCTV footage showed that at 4.58pm, Mr Marques took the lift down to the car park with Mr Salama, Mr Pajic and Ms Krupljanin. Mr Marques took $100 from his car and gave it to Mr Salama, to give to the deceased. At 5.02pm, Ms Delforce was also in the car park, standing with Mr Salama next to Mr Marques’ car. At 5.03pm, Mr Marques drove out of the car park, with Mr Pajic and Ms Krupljanin in the car. At 5.04pm, Ms Delforce drove out of the car park in her car.

The phone call to the applicant and his response

At the time the applicant took the phone call from Ms Delforce, he was at his parents’ home, where he also lived. He was in the company of AB. AB was convicted of an offence in relation to the events involving the death of the deceased, and agreed to provide assistance to, and cooperate with, the Crown, in return for which he received a 25% discount on sentence.
AB gave evidence that he was at the home of the applicant because he was looking at buying a car from him. He gave evidence that when they were looking at the car, the applicant took a phone call and moved away from AB. AB recalled that after the phone call, the applicant looked “a little bit stressed”. AB asked for the paperwork for the car and the applicant told him it was at Warwick Farm. AB then asked the applicant if he was alright, to which the applicant replied, “yeah it’s all good, I just want to pull someone up and have a few words with someone”. In cross-examination, AB agreed that “pull someone up” meant to go and have a few words with someone, tell them they’re doing the wrong thing, stop it and don’t do it again. That was what he was expecting to happen.

AB gave evidence that the applicant’s father drove the applicant and AB to Warwick Farm, dropping them off near a park. They crossed the park and ended up at a unit block. Although AB initially did not recognise the block, he and the applicant had in fact attended SJ’s unit earlier that day, but on that occasion they had entered through the car park. AB was wearing a hoodie and shorts. He recalled that the applicant was wearing a black hoodie and black trousers. The applicant’s hoodie also had a face covering, which AB described as “a little sheet thing” covering his face.
When they approached the door to the block, AB said that the applicant instructed him to turn around so as to avoid the CCTV cameras. The applicant pressed the buzzer and said, “It’s me.” AB recalled that they went through a courtyard and approached a second door, and the applicant pressed the buzzer and said something to the same effect. Around this time, the applicant asked AB for the latex gloves that he had given to AB when they were at the applicant’s home. CCTV footage taken at 5.11pm showed the applicant in the unit complex with a hood over his head and with a white glove in his hand, with AB following behind.
SJ gave evidence that she answered the buzzer on both occasions. Her evidence was that on the second occasion when the applicant buzzed the door, she heard him say, “It’s me, open the fucking door”, although in cross-examination she accepted that he might have just said “Open up” or “Let me in”. Aside from SJ, the persons in the unit at that time were Mr Salama, the deceased and Ms Papadellis. They were all in the living room: Mr Salama was standing near the balcony door, and SJ, the deceased and Ms Papadellis were all sitting on an L-shaped lounge. SJ recalled that she said to them, “It’s Marko, he sounds pissed. If you want to leave go down the fire escape.” Ms Papadellis, whose evidence from the first trial was read at the second trial, recalled hearing SJ say, “That was Marko, he didn’t sound happy.”
AB gave evidence that he and the applicant entered a lift and went up. AB was the first to exit the lift, but after walking a few steps and not knowing where he was going, he returned to the lift. He recalled the applicant putting his foot in the lift door to stop it from closing and then exiting the lift, carrying something from which he was removing sticky tape. At that stage, AB did not know what it was. He gave evidence that he asked the applicant, “what’s that?” and “what’s going on”. He was not 100% sure that he knew the object was a gun until they were in the unit and he heard a bang.

The events inside the unit

AB recalled that the door to the unit was closed but unlocked. He gave evidence in chief that as soon as he was one step inside the door, he heard a bang like a gunshot.
In cross-examination, AB agreed that he had put his hand on the applicant’s shoulder around the time the gun was discharged; but he also gave evidence that he would not have put his hand on his shoulder before the gunshot. His recollection was that he put his hand on the applicant’s shoulder when he tried to move around in front of him, after the gun was fired, in an attempt to de-escalate the situation. The following exchange occurred between the applicant’s counsel and AB:

“Q. At this stage what I’m trying to focus on is the hand on the shoulder?
A. Yeah, oh no, I wouldn’t have put a hand before the gunshot, no.
Q. No, not before, but at the same time as the gunshot has gone off?
A. No, I don’t think I would have put a hand. I would have maybe come, I would have been side by side to him trying to get in the middle of him at that stage, but I hadn’t put my hand, I don’t think I would put a hand at that stage.”

AB was subsequently reminded, by the Crown, about the evidence he gave on this issue at the first trial. In that trial, he had agreed that the gun went off pretty much immediately after the applicant went through the door, and that nothing was said before that happened. It was also suggested to AB in that trial that he had put his hand on the applicant’s shoulder when he had gone through the doorway, to which AB replied that he could not recall that. AB agreed that was what he had said in the first trial.
SJ gave evidence that when the door opened, she turned and saw two men. Their faces were covered but SJ recognised the applicant, who was holding a gun in his outstretched hand, and pointing it at the deceased. SJ recalled that she heard the applicant say, in an angry but not loud voice, “George you dog”, followed by a gunshot. When cross-examined by the Crown pursuant to s 38 of the Evidence Act in relation to her evidence at the first trial, SJ agreed that in the first trial she had said that the applicant had opened the door quickly and forcefully and said, “George, you want to be a dog?” in an aggressive tone before the gun went off. In cross-examination by the applicant’s counsel, SJ agreed that she did not report to the police that this was said until six weeks after the event; and on that basis she did not know whether it was reliable.
SJ’s recollection was that at the time the gun went off, the two men were between two and three metres into the unit, but that the door to the unit was not shut before the gun fired, “so it was pretty quick”. In cross-examination, she accepted that the men may have been only one or two steps inside the unit.
Mr Salama agreed that in his record of interview with police, he had said that two men barged into the unit, that he could not see their faces, and that he heard a gunshot straight away. He did not recall either of the men saying anything when they came in. When questioned by the Crown (in a leading way by agreement), Mr Salama was reminded that in his evidence earlier in the year, he did not agree that the applicant had said, “where’s Andre” and Mr Salama had replied, “he’s left”. Mr Salama agreed that he had given evidence that he could not recall such an exchange. When he was subsequently cross-examined by counsel for the applicant about this exchange, Mr Salama said that it could have occurred. He also agreed that in his evidence in the first trial, he said that the deceased had picked up a hammer in the living room before the applicant and AB arrived at the unit, and he was fairly sure that was what occurred.
Ms Papadellis gave evidence in the earlier trial (which was read out in the second trial) that she was sitting on the lounge with the deceased sitting to her right, and that their backs were to the door. SJ was sitting to her left. The door to the unit opened “fast and forcefully”, with a sound like a firecracker instantly thereafter. Her evidence was that at that time the deceased was not holding anything and, to her knowledge, he was not armed. She recalled the two men then coming around the front of the lounge and that one of the men was holding a gun.
AB gave evidence that the applicant moved around to the front of the couch and tried to pistol whip the deceased. That was the first time AB saw the deceased; he recalled that he was sloped on the couch, with his eyes flicking back, gasping for air. AB saw the applicant try and kick the deceased’s hand, although he did not see the kick connect with the deceased at all. He recalled seeing a hole in the back of the deceased’s shirt, and saying to the applicant, “You fucking shot him”. In cross-examination, AB said that he did not notice that the deceased had anything in his hands, and he did not recall seeing a hammer anywhere. He also did not recall the applicant asking Mr Salama where Mr Marques was. When he was subsequently cross-examined by the Crown pursuant to s 38 of the Evidence Act, AB agreed that he had said in the first trial that he had seen the applicant trying to kick the deceased in the chest.
SJ gave evidence that within a minute of hearing the gunshot she saw the deceased sliding down the lounge. The applicant approached the deceased and attempted a “roundhouse” kick but did not make contact. In cross-examination, she said that when the applicant arrived at the unit she thought the deceased was fiddling with something in his hands, but she was not sure what it was. SJ said that she had tools in her unit, including hammers and spanners, which she stored in the coffee table in the living room. In cross-examination, she said that she had recently assembled a bookshelf and may have left some tools lying around.
SJ recalled the other man (AB) saying to the applicant, “that’s enough bro, let’s go” and trying to touch him to calm him down. She also recalled Mr Salama saying, “It’s all right, Marko, like it’s all right, just relax”. AB gave evidence that the applicant said, a number of times, “call the ambulance”. He remembered giving evidence at the first trial that the applicant had also said that no one was to call the police whilst pointing the gun in the direction of the lounge room; he did not recall saying this to the police in a record of interview but accepted that he did. In cross-examination, he accepted that he also previously told the police that he did not recall the applicant threatening anyone with the gun.
Ms Papadellis’ evidence was that the two men came around the front of the lounge, and the man holding the gun went to kick the deceased but she did not think the kick connected. She recalled hearing Mr Salama say, “Come on Marko”. As was put to her in cross-examination, she did not recall one of the men asking where Mr Marques was and Mr Salama saying he had left. When she started calling the ambulance, the man who was not holding a gun told her to wait until they left. She then rang the ambulance on SJ’s phone but was too upset to speak. The deceased was struggling to breathe and Mr Salama tried to help him. He told her to go because she did not want to be there when the police arrived, so she left.
When questioned by the Crown in a leading manner (by agreement), SJ agreed that when she first spoke to police she told them that when the applicant and the other man started walking out, the applicant pointed the gun at all of them and said, “If anyone says anything I’m gonna come and knock you”. She had earlier given evidence that after everyone left her unit, she sent a message to a friend saying, “M just shot George”.

Injury to the deceased’s scalp

During the autopsy, a linear abrasion was observed on the deceased’s scalp behind his right ear, surrounded by large bruising. The imprint had an L-shape with a 90 degree rounded corner with both arms measuring approximately 9 mm in length. Dr Burger, a forensic pathologist, gave evidence that the injury appeared to be recent and was consistent with a blunt force injury likely caused by a man-made object. She gave evidence that quite a lot of force would have been required to create the bruising, and that the abrasion could have been caused by a pistol, such as through a pistol-whipping motion. In cross-examination, Dr Burger agreed that if the grip of the pistol was covered in tape, it would be unlikely to cause such an injury.

Events after the applicant and AB left the unit

CCTV footage showed the applicant and AB leaving the unit block at around 5.16pm, walking through the courtyard and over a garden bed. The applicant discarded his jumper and gloves, and disposed of the pistol in a bin. He then sought assistance from occupants of nearby residences. Adam Browning gave evidence that a man had knocked on his door, offering him money so that he could come in (which Mr Browning declined). Adam Robertson, whose statement to police was read to the jury, said a man knocked on his door and offered him money to let him in, and Mr Robertson let him in. The man gave him $250 and asked to use his phone. Mr Robertson saw the man make a phone call, speaking in a language he did not recognise. In the course of the phone call the man asked Mr Robertson for the address of the unit complex next door. The man continued to check outside through the front window and, when he said he had to go, Mr Robertson opened the back door for him and saw him jump over the back fence.
The applicant’s girlfriend, Nina Gulic, gave evidence that she received a phone call from the applicant, who asked her to come and collect him from Lachlan Street in Warwick Farm. She did so, driving him to the home of an associate in Parramatta; she later drove him to Newcastle at his request. She asked the applicant what was going on and was told that it would be safer if she went with him, that “they” were dangerous and the less she knew about it the better. In cross-examination Ms Gulic gave evidence that on the way to Newcastle, the applicant was withdrawn and at one stage asked her to pull over because he felt sick. The applicant and Ms Gulic then made their way to Victoria, then to South Australia, and then to Perth, where the applicant was arrested.
In a subsequent search of the area around the unit block in Warwick Farm, the police recovered a jumper, latex gloves and a pistol. Ms Sesardic, from the Forensic Biology DNA Laboratory of Forensic and Analytical Science Service, gave evidence that tape lifts from the jumper gave a mixed profile result, with the major contributor matching the applicant’s DNA profile. A DNA swab from the striated top of the pistol that the police retrieved had a major contributor with the same profile as the applicant. The grip of the gun had a mixed DNA profile. The DNA of the deceased could not be excluded as a contributor: it was more than one hundred billion times more likely to get that mixed profile if it originated from the deceased and three unknown and unrelated individuals rather than if it originated from four unknown and unrelated individuals.
Ballistics evidence was given by Senior Constable Hay for the Crown. His evidence was that in order for the pistol to be fired, the magazine had to be loaded and inserted into the hand grip. The slide lock needed to be pulled to the rear, to feed the cartridge. The components within the trigger mechanism then needed to be cocked. The pistol could not fire if the safety catch was engaged; and the trigger needed to be pulled. The amount of pressure needed to discharge the pistol was at the lighter end of the range of trigger force from the manufacturer, Browning. In cross-examination, Senior Constable Hay agreed that it would probably be only about 1 mm or 2 mm of movement for the trigger to be pressed; and, if the magazine was already inserted, the slide lock pulled back and the safety catch off, only one “slight rearward movement of the trigger” was required to cause the bullet to discharge.

The applicant’s evidence from the first trial

The applicant gave evidence that AB was at his home to hang out and to look at a car that the applicant was going to sell him. The applicant recalled receiving the phone call from Ms Delforce when he and AB were looking at the car. He recalled that Ms Delforce was distressed and told him that the deceased “and five other blokes are jumping on Andre’s head, that to come and help him quickly that they’re going to kill him”. The applicant gave evidence that he panicked. Mr Marques was a close friend of the applicant’s, and he had previously seen the footage of what had occurred when the deceased kidnapped him earlier in the year.
The applicant gave evidence that he went and grabbed a gun that he had hidden behind some pipes, which was wrapped in plastic. The applicant said to AB that he was going somewhere “to help a mate, that I needed to pull someone up and my car wasn’t at home so I asked my dad to give me a lift across the highway”. He did not tell AB about the gun, and AB did not see the gun.
The applicant gave evidence that his father drove him and AB and dropped them off across the highway from SJ’s unit, as that was an easy spot for his father to drop them off. He and AB then walked across a park to SJ’s unit. The applicant said that he put the hood of his jumper on, and put the windbreaker attachment over his face. He buzzed at the first door and when SJ answered, he said, “it’s Marko, let me in”.
After they went through that door, the applicant asked AB for the gloves, which he had previously given to AB when they were moving a body kit for the car. He put the gloves on “[b]ecause I didn’t know what state Andre was in or what was happening upstairs and I didn’t want to leave my DNA or my fingerprints at the scene where Andre was, I don’t know, getting bashed or, I don’t know, worse, unconscious”. The applicant also gave evidence that he put the windbreaker part of his jumper over his face “[b]ecause I didn’t want to get dragged in, into something that had nothing to do with me”.
The applicant gave evidence that his intention in going to the unit was, “[t]o talk to George, negotiate with George and get Andre out of there”. When he reached the second locked door downstairs, the applicant said that he again buzzed and said, “[i]t’s Marko, let me up”. He recalled saying those words in a normal tone but gave evidence that he was scared and frightened. After he and AB went up in the lift and AB exited, the applicant pulled out the gun and started unwrapping it. By the time AB came back to the lift, the lift door was closing, and the applicant stuck his leg in the door to open it. He agreed that some of the packaging was still on the gun when he entered the unit, explaining that he was panicking and “just didn’t have time”.
The applicant described the gun as already loaded and cocked, because that was how his friend had given it to him. He also knew that the safety catch was not on when he wrapped it up. The applicant accepted that he knew that the pistol was in a position to be fired, but said that he was not thinking about safety.
The applicant recalled that when he exited the lift, AB started saying to him, “what are you doing”. The applicant did not answer. He pushed open the door of the unit with his left hand, while holding the gun in his right hand (he was right-handed). The applicant then gave this evidence:

“A. …When I opened the door, I lifted the gun up, I looked. George was on the right, Taylah and SJ were sitting there. As I walked in I was about to take my hoodie off and the windbreaker. [AB] has grabbed me on the left shoulder. I twitched and the gun went off.
Q. You have done a movement where you moved your head around towards the left, is that right?
A. Yeah.
Q. Was [AB] on your left?
A. Yeah.
Q. And which shoulder did he grab?
A. My left shoulder.
Q. Did you look, did you turn to look to see what was happening, is that right?
A. Yeah.
Q. And is that when the firearm has gone off?
A. Gone off, yeah.
Q. Did you deliberately pull the trigger?
A. No.”

The applicant also gave evidence that the deceased had a hammer in his hand, and so the applicant walked towards him and attempted to kick him, to get the hammer out of his hand. By the time he did this, the deceased had in fact dropped the hammer. The applicant was then about to hit him with the gun, but when he looked at the deceased he saw that his eyes were rolling back in his head. The applicant recalled that he had put his hand up to start a pistol whipping motion but did not actually hit the deceased.
The applicant recalled that Mr Salama told him to calm down. At this point, the applicant asked where Andre was, and Mr Salama replied that he had left. The applicant then looked at the deceased again, who was sliding off the chair. SJ and Ms Papadellis were screaming, and the applicant turned to them and told them to call the ambulance. He recalled saying something to them like, “don’t give me up”, but he denied threatening them. He also denied having called the deceased a dog, or saying “die you dog”. The applicant denied that he intended to shoot the deceased, and he denied that he intended to seriously injure him.
The applicant gave evidence that he and AB left the unit at AB’s urging, and went back down in the lift. When they realised that the door to the building was locked, he and AB jumped the fence before running in different directions. The applicant gave evidence as to what followed that was consistent with the evidence of Mr Browning and Mr Robertson (see [41] above). He also agreed that he called his girlfriend, Ms Gulic. When asked why he did those things rather than stay in the unit and tell people he had accidentally shot the deceased, the applicant replied, “[b]ecause I was panicking. I was panicking. I couldn’t believe what had just happened.” He accepted that he could have gone to the police, and said that he did not do so because he was scared about what would happen to him, believing that “accident or not, I would have ended up in gaol”. The applicant also did not tell Ms Gulic the truth about what had happened because he was scared.

When cross-examined by the Crown, the applicant agreed that he had entered the unit with a loaded gun in his hand, with the safety catch off, and that he pointed it squarely at the deceased. He agreed that he went to the unit voluntarily, with a gun that he knew was loaded and that he knew how to use. The applicant said that he took the gun to the unit because he needed it for his protection and for Mr Marques’ protection, because he did not know who was going to come at him when he entered the unit.
In relation to the danger that he thought Mr Marques was in, the applicant accepted that Mr Marques had never mentioned the incident with the deceased earlier in the year, and the applicant did not raise it with him. The applicant also did not raise it with the deceased on the occasions when he had seen the deceased, although his evidence was that their interactions were infrequent and of short duration. He agreed that after he received the phone call from Ms Delforce, he did not send her any further messages about Mr Marques’ welfare.
The applicant accepted that Ms Delforce had sent the text message at 4.57pm (see [20] above) but said that he did not see it, even though he tried to call her some 30 seconds afterwards. He did not accept the proposition that he would have been glued to his phone, giving evidence that he just wanted to get to SJ’s unit. The applicant also agreed that he did not telephone Mr Marques, stating that he had left his phone at home and that he thought Mr Marques was at SJ’s unit.
In relation to the applicant’s evidence that he had his father drop him and AB in Liverpool because he did not have a licence, the Crown pointed out that he had driven a car earlier that day. The applicant then said that he chose not to drive because he was carrying a concealed weapon that was not registered. He accepted that he had hidden the weapon down his pants.
It was suggested to the applicant that the perfect opportunity to check whether Mr Marques was in SJ’s unit was when he pressed the buzzer downstairs, to which he replied, “I wasn’t really thinking, I was in panic”. He denied, as the Crown had put to him earlier, that he was very angry. The Crown also put to him that if he was so concerned about Mr Marques’ welfare he could have called the police, to which the applicant replied that he did not want any repercussions for his family. He also agreed that he was aware he could have made an anonymous call to the police but that he wasn’t really thinking like that and was in a panic.
The applicant denied that when he had to buzz at the second door he said to SJ, “[o]pen the fucking door”. However, he accepted that he entered the building wearing latex gloves because he did not want to leave his DNA, because he did not want to get dragged into something that he had not done. He also agreed that he had angled his head away from the security cameras, having visited before and knowing the camera locations, and that he told AB to put his head down and might also have told him to put his hoodie up.
In relation to what happened inside the unit, the applicant accepted that he entered the unit with a loaded gun in his outstretched hand, that he could clearly see the deceased, and that he was pointing the gun at the deceased. The applicant agreed that Mr Marques was not present, and that there was absolutely no need to defend him; but said that he did not know that at the time. He said that he pointed the gun at the deceased in case the deceased jumped up or lunged at him. The applicant also maintained that he could see what the deceased was doing with his hands, but that he first saw this when the gun went off. He agreed that he was pointing the gun at the deceased on purpose and that he knew the gun could be fired, but said that he did not know that the gun was pointed directly at the deceased and he did not think the bullet hit the deceased.
The applicant said that he did not realise that the deceased had started sliding down the lounge until he got to him. He denied being so angry with the deceased that he tried to kick him and denied that he used the handle of the pistol to pistol whip him. The applicant accepted that he did not say to anyone in the unit, “that was an accident” (nor did he say anything like that to AB). He also accepted that he did not say, “that wasn’t meant to happen, how can I help”, contending that he was panicking and in shock. The applicant denied that he wanted to shoot the deceased, wanting him to die or at least be seriously hurt because he was so angry with him.
The Crown then cross-examined the applicant about the events after the shooting, including his visit to Mr Browning’s door and to Mr Robertson’s house, his phone call to his girlfriend and their subsequent flight. He accepted that he was concerned about police scrutiny, and that he was on the run. He also accepted that he did not tell his girlfriend that someone had been shot accidentally and that he had been trying to save someone (being Mr Marques).

Evidence in the applicant’s case

As I have noted above, the applicant did not give evidence at the second trial. The only evidence he called was from a ballistics expert, Francis Lawton. Mr Lawton gave evidence that in his opinion, the trigger pressure did not have any effect upon whether the gun could be accidentally or unintentionally discharged. In cross-examination, Mr Lawton accepted that the trigger pull was well within the normal range and that the trigger pull was not what is known colloquially as a “hair trigger”.

The proposed directions

On 25 November 2021, at the close of the evidence in the trial, the trial judge raised as an issue how the Crown proposed to deal with its use of various parts of the applicant’s evidence and what directions were sought in respect of that evidence. The following day, counsel for the applicant provided his Honour with a document titled, “Proposed Directions by the Defence on The accused’s evidence” (MFI 42). The document included proposed directions about the applicant not giving evidence in the trial, and directions about his evidence in the first trial. Relevantly, the proposed directions on the latter included the following:

“There are four broad conclusions you might reach about the accused’s evidence. If you think it is true, then you will find him not guilty.
If you are not sure whether the accused’s evidence is true, but think it might be, then you will have a reasonable doubt about the prosecution’s case, and again, you will find the accused not guilty. Similarly, if you merely prefer the evidence of the prosecution witnesses to the accused’s evidence, then you must find the accused not guilty. It is not sufficient for you to merely find the prosecution case to be preferable to the defence case. In other words, it is not a question of simply balancing one case against the other. The prosecution must establish the accused’s guilt beyond a reasonable doubt.
Finally, if you reject the accused’s evidence from the previous proceedings, that does not mean you must find him guilty. Instead, if you reject his evidence, put it aside and ask whether the prosecution has proved the accused’s guilt beyond reasonable doubt, on the basis of the evidence you do accept.”

The trial judge was troubled by the generality of this part of MFI 42 given the Crown’s reliance on a number of things that the applicant said. His Honour contrasted the present case with a sexual assault case in which the complainant and the accused generally give opposing accounts. By contrast the present case was “a little more complicated … and the Crown relies on some things the accused says as being incriminating and, therefore, that direction would oversimplify it in a way that would not be appropriate”.
The Crown opposed the draft direction, submitting that the four broad conclusions treated the applicant’s evidence “as something that must be accepted or rejected in its entirety, and that’s incorrect”. In the course of an exchange with the Crown, the trial judge raised the following possibility:

“If it was put in terms of, and what I was thinking was reference to perhaps an issue in the case, and I was thinking of the deliberate versus accident issue. The accused says he didn’t intentionally pull the trigger. He says that happened in circumstances where there was some physical contact with [AB], as I understand what he says. If the accused’s account that it occurred in that way was reasonably possible in the minds of the jury, then that would lead to his acquittal. Is that a fair statement? What I’m thinking of is this, frankly, just to trying to pick a couple of concrete examples in this case rather than talking generally about accepting his evidence or not accepting his evidence.”

The trial judge was also conscious of the nature of the Crown case as involving a combination of direct evidence and circumstantial evidence. In the same exchange with the Crown, his Honour stated in that regard:

“For a jury to determine whether they're satisfied beyond reasonable doubt that the act was deliberate does not - it involves looking at all the evidence, not just what happened in the moments surrounding the discharge of the weapon; what happened, what was said, and therefore care would be needed not to focus attention by using a formula such as if the accused's account that it was accidental was reasonably possible then you would acquit or something like that because you would be inviting a focus on one part when it is necessary to look at the totality of the evidence.”

His Honour asked counsel for the applicant whether there was “anything further you wanted to say about MFI 42”, to which counsel responded:

“STEEL: No, your Honour, although on the last occasion I did, and intend to this time, make the sorts of submissions that, you know, if they accept the accused’s evidence is true about the discharge thing then they should acquit or if they have some reservations, standard in terms of my address, but that it might possibly be true then they should acquit. I will still be doing that.
HIS HONOUR: I don’t see the difficulty with that. That is a particular issue but I would be asking them to consider all the evidence when they come to assess the question of reasonable possibility, so it is not cutting across what you’re going to say. I will give this issue some further thought myself. There will be an opportunity for a further discussion about what’s to be said to the jury on this topic before I say anything about it. I’m grateful for your draft, Mr Steel, MFI 42.”

On 29 November 2021, the trial judge provided to counsel a document titled “Some Further Directions” (MFI 46). His Honour informed counsel that although he did not intend to use the document as a written direction, it captured his thinking on a number of topics including with respect to MFI 42. As to that topic, his Honour stated that he had not included anything about the “four broad conclusions”. Instead his Honour proposed that he would remind the jury of the arguments and in due course direct them, at an appropriate time, “that if having regard to the totality of the evidence, the jury considered that it was a reasonable possibility that the accused, as he said in evidence, in effect, fired the gun accidentally or did not fire the gun deliberately, then the jury should acquit”.
MFI 46 included a direction regarding the applicant’s decision not to give evidence in the current trial and his evidence in the first trial which formed part of the evidence before the jury. In that context, the following exchange occurred:

“STEEL: … There is also no issue with the parts of the directions you have included concerning the evidence of the accused in earlier proceedings. It is noted that your Honour didn't give those four broad considerations, but your Honour has indicated the main one that I will be referring to, your Honour will also be referring to.
HIS HONOUR: It is my general approach to, after reminding the jury of the addresses of counsel, to come back and try, in a nutshell, identify what the issues and arguments are. Certainly, at that stage, I will introduce, which would be late in the summing up, the way in which the jury could use the evidence in that sense and the concept of reasonable possibility which are things I will be saying something about, but, I, of course would have had the benefit of hearing what counsel say about it first.”

Following a brief discussion on directions concerning post-offending conduct, counsel for the applicant stated that there was nothing further he sought to raise.

The Crown’s closing address

The Crown’s closing address first focused upon the evidence the applicant gave in the first trial and what the Crown described as “ten key improbabilities” in his account, when regard was had to the evidence of other witnesses or independent evidence in the trial, which would lead the jury to reject parts of his evidence. The improbabilities included: that the applicant did not see the text message from Ms Delforce at 4.57pm; that he was gravely concerned for Mr Marques’ welfare; that he was not angry with the deceased; that he was dropped off at the park rather than the unit because his father had a medical condition; that he and AB had latex gloves with them because they had been looking at a body kit for the car; and that he concealed his identity because he did not want to be involved. It was also an improbability, the Crown submitted, that AB touched the applicant on the shoulder before the gun fired, and that the applicant did not realise the deceased had been shot before moving around to the front of the lounge and trying to kick and pistol-whip him.
After taking the jury through each of the improbabilities, the Crown submitted that they would bear on the jury’s consideration of whether the Crown had discharged the onus of proof. Counsel for the Crown reminded the jury in this context that the onus was on the Crown from beginning to end to prove its case beyond reasonable doubt and that the applicant did not have to prove anything at all.
In relation to the question of whether the applicant intended to kill or very seriously harm the deceased, the Crown submitted that it was necessary for the jury to look at the steps that led to the deceased being shot. The Crown submitted to the jury that apart from the applicant’s attempts at concealment and disguise, the steps he took included getting the gun from behind the pipes in his yard, knowing it was loaded and cocked with the safety catch off; unwrapping it in the lift, and pointing it directly at the deceased as soon as he entered the unit with his finger on the trigger. The Crown submitted that the jury could reason that pulling the trigger was the last of a significant number of steps which, when considered together, demonstrated that the applicant had the intention to kill or seriously injure the deceased. The Crown also relied on what occurred after the event, including the applicant discarding his jumper, gloves and the gun, and the evidence of flight.
The Crown took the jury through an aide-memoire as to the timing of events on the afternoon of 22 July 2018 by reference to the available CCTV footage (MFI 47). The Crown submitted that on its case, the jury would find that the applicant had the necessary intention for the charge of murder to be made out, and that intention could be inferred or deduced from the circumstances in which the death occurred and from the conduct of the applicant before and after the shooting. The Crown submitted that the evidence pointed to the applicant doing all that he did on the way to, and at, the unit, “not to free his friend, but instead to take violent revenge on Mr Nassif [the deceased]”.

Counsel for the applicant’s closing address

Counsel for the applicant submitted to the jury that what happened on 22 July 2018 bore the hallmarks of the applicant genuinely believing that he needed to come to the aid of Mr Marques, whom he believed was detained in the unit and, for all he knew, was the victim of a continuing assault. Counsel reminded the jury that the applicant’s account, that he twitched and the gun went off, was on account of a reflex action to the unexpected hand of AB on his shoulder. It was not a deliberate act but rather an unwilled act on his part. After emphasising that the Crown had to prove the applicant’s guilt beyond reasonable doubt, counsel for the applicant submitted:

“In this case it would not be enough if you thought that Mr Krivosic was probably guilty. There must be no reasonable doubt about it.
If you came to the view that there was a reasonable possibility that what Mr Krivosic has said about accidentally discharging the pistol is true, then you would be bound to acquit him ….”

As counsel for the Crown had done in her closing address, counsel for the applicant highlighted the surrounding circumstances, contending that they supported the applicant’s evidence that he attended the unit in a panicked state, thinking that Mr Marques was at risk of serious physical harm. Thus, by way of example, counsel for the applicant submitted that although one explanation for the applicant leaving his phone at home was to avoid his movements being tracked, it was equally plausible that he was in a state of panic and left it at home in his rush.
In this court, the applicant highlighted a submission that his trial counsel made to the jury in relation to AB’s evidence. The applicant’s trial counsel submitted that where the accounts of the applicant and AB differed, the jury “should prefer the evidence of [the applicant] and reject the evidence of [AB]”, given the potential unreliability of his evidence. That said, the applicant also relied on parts of AB’s evidence, with counsel taking the jury to significant parts of his evidence about whether, and when, AB put his hand on the applicant’s shoulder. Counsel for the applicant submitted that when AB’s evidence was considered as a whole, the jury would have little difficulty concluding that he put his hand on the applicant’s shoulder when they entered the unit, immediately before the pistol discharged.
In relation to the evidence the applicant gave at the first trial, counsel highlighted that the applicant readily admitted a number of matters (such as having the gun, knowing it was loaded and could be fired), which was indicative of him trying to give an honest account of events. Counsel emphasised the circumstances of his attendance at the unit, his departure from the unit, and what occurred afterwards, including his flight. He submitted to the jury that the circumstances strongly supported that what happened at the unit that afternoon was neither intended nor planned.
Counsel reminded the jury that the onus was on the Crown to prove beyond reasonable doubt that the shooting was a voluntary act, and there was no onus on the applicant to prove that it was an involuntary act. He submitted that “if you [the jury] are not satisfied that the Crown has eliminated as a reasonable possibility that the discharge of the pistol was from a reflex action, that is that it wasn’t deliberate, you would be bound to find Mr Krivosic not guilty of murder”. He concluded as follows:

“Members of the jury, to draw it altogether, I suggest there is very clear evidence that Mr Krivosic had a reason to go to this unit with no intention to shoot George Nassif. He had a reason to go there other than to shoot him and his purpose was simply to make sure Andre Marques wasn’t being assaulted and to get him out of there. He didn’t have information that Andre Marques was no longer there, and I took you through that at the start. He did [have] a reason to be armed that had nothing to do with intending to shoot anyone. It was to protect him from the potential threat of what he believed were multiple assailants in that area. So he had a reason to go there and a reason to be armed. It had nothing to do with shooting Mr Nassif.

It is very unlikely he intended to shoot Mr Nassif because he hadn’t planned for it. He had no way of getting out of there. He had no real exit plan. He didn’t even have a phone to call his girlfriend. Something went spectacularly and unexpectedly wrong and that was an accidental shooting.
I submit you should accept what he is saying about the discharge of the firearm being a reflex action to his being grabbed on the shoulder and, if you accept what he says about this, you would be bound to find Mr Krivosic not guilty of murder and also manslaughter, because for both of these offences, they require the Crown to prove beyond reasonable doubt the act of the accused that caused the death of Mr Nassif was a deliberate one. However, if you had some reservations, but you thought there was a reasonable possibility that the gun was discharged by an involuntary action, you would still be bound to acquit Mr Krivosic of murder because the Crown would not have proven beyond reasonable doubt that he deliberately did cause Mr Nassif’s death.
Even if you have reservations, but you think it is a reasonable possibility that it was an accidental discharge, an unintentional shooting, then you would still be bound to acquit him of murder, because the Crown wouldn’t have proven that it was a deliberate act. If you are not satisfied that Mr Krivosic intentionally pulled that trigger, he is entitled to be acquitted outright. That is he would be not guilty of both murder and manslaughter because those offences both require the act of the accused causing death to be intentional. An involuntary reflex action that is not willed is not an intentional act.”

The trial judge’s summing up

In Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 at [46], the joint judgment observed that the question of whether there has been on any ground a miscarriage of justice must always require consideration of the whole of the judge’s charge to the jury, the ultimate question being “whether, taken as a whole, the judge’s instructions to the jury deflected the jury from its proper task”. Although the focus of the ground of appeal was the form of direction that the trial judge gave about the applicant’s evidence, towards the conclusion of the summing up, it is necessary to consider the direction his Honour gave in context.
Early in the summing up, the trial judge emphasised that “at no stage of the trial is there an onus or obligation on the part of the Accused to prove that he is innocent”, or “to disprove any part of the Crown case”. Instead, the onus rested on the Crown “to prove every matter necessary to establish against the Accused that he is guilty of murder or, if it arises, that he is guilty of manslaughter”, and that the standard of proof was beyond reasonable doubt. In taking the jury through the elements of the charge, his Honour reminded the jury of the applicant’s submission that it would not be satisfied beyond reasonable doubt about the second element, being that the act was a deliberate act, and that if the jury determined there was a reasonable doubt as to that element “that would involve not proceeding further”.
His Honour directed the jury that in considering whether it was satisfied as to the elements of the charge beyond reasonable doubt, it was necessary to consider the evidence in the case as a whole:

“… Take, for example, the deliberate act aspect. On one view, you might think, well, we just have to look at what [AB] said, just look at what the Accused said and what anyone else who was in the room said on the issue and that that is as far as one needs to go.
Well, that wouldn’t be the correct way of doing it. You look at all the evidence. Because all the evidence in the trial is before you and some parts are capable of shedding light on other parts. So that is an introductory proposition which you will hear me repeating from time to time because it is quite important.
It doesn’t mean that an examination of what [AB] said and what the Accused said and what the other people in the room said is not important. Clearly it is important. But you look at that against the background of the totality of the evidence, which includes background evidence, including the grievance that apparently existed between Mr Nassif and Mr Marques. Then what the Accused did in coming into the premises, what steps he took on the way and when he got there, what happened in the unit and then what happened when he left. All of that may shed some light on these individual elements.
So the issue of deliberate act – I remind you again that the act causing the death of George Nassif must be a deliberate or willed act of the Accused before he can be held criminally responsible for the consequences of that act. It is not deliberate if it was not voluntary. In common speech, a person will describe an involuntary act as being an accidental one. The issue arises here in circumstances where it is said by the Accused in his evidence, which is before you from earlier proceedings, that he did not intend to pull the trigger, that it was physical contact with [AB] that led to him, in a reflex way, pulling the trigger. Thus this is an important issue in the trial which affects not only murder, but manslaughter, to the extent that you consider it arises. I will say no more about that at the moment. …”

In relation to the applicant not giving evidence in the trial, his Honour directed the jury in accordance with the proposed direction he had included in MFI 46. In relation to the applicant’s evidence from the first trial, his Honour directed the jury as follows:

“However, in this case, the Crown has tendered the sworn evidence given by the Accused in earlier proceedings. In those proceedings, the Accused chose to give evidence. He did not have to do that as an Accused person has the right to remain silent in court. As I have told you, it is for the Crown to prove the guilt of the Accused beyond reasonable doubt. It is not for the Accused to prove his innocence. This has not changed because the Accused chose to give evidence in earlier proceedings and that evidence has been placed before you by the Crown in this trial.
In choosing to give evidence in the previous proceedings, the Accused undertook to tell the truth. He submitted himself to cross-examination, which is the way in which lawyers test the credibility and reliability of a witness' evidence. In this respect, the Accused was no different to any other witness in the previous proceedings. You should assess the content of the evidence in the previous proceedings in the same way as you assess the content of the evidence of any other witness. So I give you that direction concerning the evidence of the Accused which has been tendered in this trial.”

In relation to the evidence of the witnesses in the trial, his Honour directed the members of the jury that it was for them to determine “what evidence you accept, what evidence you can safely rely upon, what weight you give to particular evidence”, and that they may “decide to accept everything a witness says, some of the things a witness says and, in some cases, nothing that a witness says”. His Honour directed the jury to consider all of the evidence, which may assist in deciding whether the evidence of a witness was truthful and reliable.
In summarising the Crown’s closing address, when referring to the ten key improbabilities his Honour made the point that the Crown “was not attempting to say that there was any onus on the Accused to prove anything”. Rather, “[w]hat the Crown was seeking to do was to identify what were said to be problems with the Accused’s account, which you would bear in mind in determining whether the Crown had proved the guilt of the Accused beyond reasonable doubt”.
In summarising the applicant’s closing address, the trial judge repeated the submission of his counsel that if the jury came to the view that there was a reasonable possibility that what the applicant said about accidentally discharging the pistol was true, then the jury would be bound to acquit him. His Honour also referred to the submissions the applicant made about “what has been referred to as a major issue in the trial, namely whether the discharge of the firearm was deliberate or accidental”. Although his Honour repeated the applicant’s submission that the jury would prefer his evidence over that of AB as to when any physical contact occurred between the two men, his Honour went on immediately to observe that the applicant also submitted that part of AB’s evidence left open the possibility that there was physical contact between them at the time the weapon discharged.
Towards the conclusion of the summing up, his Honour turned to the parties’ positions on the principal issues in the proceedings. His Honour’s summary highlighted the extent to which the Crown and the applicant relied on the same circumstances to support (for the Crown) and undermine (for the applicant) the proposition that the applicant held the requisite intention at the time he shot the deceased. By way of example, both the Crown and the applicant relied on the following:

The applicant did not drive to the unit and had his father drop him and AB off some distance away: the Crown contended this was done to reduce the prospect of observation and detection, while the applicant contended that it was the quickest way to get to the unit, consistently with his father’s preferred stopping point.

The applicant did not have his mobile phone with him: the Crown contended that this was deliberate because he knew it could assist to identify his movements, while the applicant contended that he forgot it in the panic of the moment.

The applicant put on latex gloves and obscured his face: the Crown contended this was consistent with the applicant intending to commit a serious crime, while the applicant contended that he took these steps out of a concern not to be implicated in a crime that may already have been committed against Mr Marques.

In relation to the issue of physical contact between AB and the applicant, his Honour summarised the Crown position as being that any physical contact took place after the shot was fired, relying on AB’s evidence that he wanted to avoid any further shots being fired. His Honour summarised the applicant’s position as follows:

“The defence submitted that the evidence of [AB] leaves open the reasonable possibility that he came into physical contact with the Accused before the shot was fired, and that it was this physical contact that led to the accidental discharge of the firearm, and that this supported the evidence of the Accused that he did not fire the pistol deliberately.”

Before proceeding to practical aspects of the jury’s deliberations, his Honour concluded as follows:

“Ladies and gentlemen, the onus of proof lies on the Crown from first to last. It is for the Crown to prove beyond reasonable doubt each of the elements of murder or, if it arises, one or other of the two forms of manslaughter. The Accused is not required to prove anything.
With respect to the element of deliberate act, if, after considering all the evidence which is before you, you consider there was a reasonable possibility that what the Accused said about accidentally discharging the pistol is true, you would be bound to find the Accused not guilty of murder and not guilty of manslaughter.
If you are satisfied beyond reasonable doubt that this was a deliberate act of the Accused in discharging the pistol, then you move to the other elements of murder to which directions have been given.”

The ground of appeal: whether his Honour erred in failing to give a complete or effective Liberato direction in his summing up to the jury

In De Silva, the majority described a Liberato direction as serving “to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt”: at [10]. Their Honours described the focus of the direction as addressing the forensic reality that “[w]hen an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths or weaknesses of the defence case”: De Silva at [11].
The source of the direction was the dissenting reasons of Brennan J in Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 ("Liberato”), with his Honour stating at 515:

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is ‘a gross simplification’.”
(Emphasis added.)

In De Silva at [12], the majority referred to the decision of Wheeler JA in Johnson v Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531, in which her Honour (Martin CJ agreeing) considered the above statement in Liberato and expressed the view that there were “a number of difficulties” with it. Specifically in relation to the last two sentences, which I have emphasised, her Honour stated at [15]:

“…it must be accepted that a jury may positively disbelieve and therefore completely reject the evidence of an accused person. In that situation, it would be positively confusing for them to have been told that they could not find an issue against the accused, if the accused’s evidence gives rise to a ‘reasonable doubt’, because, if the evidence is rejected, it must be set aside, and cannot give rise to a doubt.”

Wheeler JA was thus inclined to agree that a preferable form of the relevant direction was that expressed in R v Anderson [2001] NSWCCA 488; (2000) 127 A Crim R 116 at [26] (Kirby J, Sheller AJ and Dowd J agreeing), being the form of direction that the High Court endorsed in De Silva. Her Honour also recognised that “there is no form of words which must be used in all circumstances”: at [16]. Rather, “[t]he essential point which must be made, where a judge considers it necessary or desirable to do so, is that a jury’s task is not to choose between opposing stories, but to determine the question of whether the State has proved its case beyond reasonable doubt”: at [16].
As I noted above at [7], it was common ground on the appeal that a Liberato direction was required in circumstances where the Crown had led the applicant’s evidence from the first trial. The issue that divided the parties was the form in which the direction should have been given. In his written submissions, the applicant contended that the reference in the summing up to the reasoning in the second limb of Liberato (see [91] above) was not an effective Liberato direction, and that the full direction as set out in De Silva was necessary to avoid a miscarriage of justice. In oral submissions, however, Senior Counsel for the applicant conceded that the trial judge could not give a direction that accorded precisely with the terms of the third limb in light of the Crown’s positive reliance on parts of the applicant’s evidence from the first trial.
Senior Counsel’s concession was properly made. Although there were aspects of the applicant’s account that the Crown submitted the jury should reject, the Crown also submitted that the jury should accept admissions that he made about his actions on the afternoon of 22 July 2018. The applicant relied on that same evidence, in addition to parts of his evidence with which the Crown took issue. Given both the Crown and the applicant relied on the applicant’s evidence, a direction wholly in accordance with the third limb of the refined Liberato direction in De Silva, which starts from the premise that the jury rejects all of the evidence of an accused, would likely have confused the jury: see Harper v R [2022] NSWCCA 211 at [154], [160] (Button J, Bell CJ and N Adams J agreeing).
The applicant submitted that a modified direction could nonetheless have been fashioned that focused on the matters in the applicant’s evidence that were in dispute. After the hearing, the Court received from the applicant the following direction, with the bolded part described as the part that should have been but was not given:

“In this case there is an issue about the accused’s intention at the time the shot was fired which killed the deceased. The case for the Crown is that the accused had, at that time, an intention to kill or inflict grievous bodily harm on the deceased. As I have told you, that is a matter which the Crown has to prove beyond reasonable doubt, before you could find that the Crown has proved that the accused is guilty of murder.
There is before you evidence of what the accused said on oath in earlier proceedings. The accused gave evidence that when he and [AB] entered the flat, [AB] touched him on the shoulder, he twitched, and the gun went off. He said that he did not deliberately fire the gun.
I give you these directions about the evidence of the accused.
If you believe the evidence of the accused, you must find the accused not guilty.
If you do not accept the evidence of the accused, but you consider that it might be true, you must find the accused not guilty.
If you do not believe the accused’s evidence, you should put that to one side. In that third case, the question will remain: has the prosecution, on the basis of evidence that you do accept, proved, beyond reasonable doubt, that accused intended to kill or inflict grievous bodily harm on the deceased at the time the gun was fired?
If you find that the accused did have the intention to kill or inflict grievous bodily harm, you would then still have to go on to consider whether or not the Crown has excluded the defence of defence of another, before you could return a verdict of guilty of murder.”
(Emphasis in original.)

As the Crown submitted in its response to this document, the balance of the directions of which the bolded paragraph forms part did not appear in the summing up in that form. Further, as Senior Counsel for the applicant accepted of a modified direction that he formulated during the hearing, which was limited to the matters in the applicant’s evidence that were in dispute, it was not the form of direction that the applicant’s counsel had sought at the trial.
Although the bolded part of the direction is not expressly confined to the evidence of the applicant regarding what occurred upon his entry to the unit, read with the preceding paragraphs it was likely intended to be so read. The primary difficulty with it, as the trial judge observed in the exchange regarding the applicant’s initial direction (MFI 42) (see [68] above), was that it isolated the evidence of the applicant on that issue from the surrounding circumstances, which were critical to the case of the applicant and the Crown, both of which wanted the jury to reason inferentially from his evidence.

In addition to giving a significant direction regarding inferential reasoning, using the issue of deliberate act as an example, in the Liberato direction that the trial judge gave his Honour instructed the jury that it should consider that element “after considering all the evidence which is before you”. Those words made allowance for the fact that, contrary to the applicant’s submissions, neither the Crown nor the applicant framed their case below as one that involved a choice between his evidence and the evidence of the other witnesses in the trial on that issue. So much is apparent from the manner in which the trial judge summarised the applicant’s submissions about the evidence of AB, which was said to have left open the possibility that he put his hand on the applicant’s shoulder around the time the gun went off. As the Crown submitted of a conventional Liberato direction, such a direction would have failed to engage with the importance of considering the totality of the evidence. The modified direction for which the applicant contended on appeal raised the same difficulty.
The applicant submitted that absent a Liberato direction with a modified third limb, the case was inadvertently framed for the jury as a choice between the applicant’s evidence and the evidence of other witnesses as to the most important factual issues of the trial. For the reasons I have given above, I do not accept that characterisation of the direction that his Honour gave or its consequences. Rather, in the present case the trial judge gave a direction that was necessary to accommodate the particular circumstances. The critical part of the Liberato direction in the present case was the very part that the trial judge gave, echoing a submission that had formed part of the applicant’s address to the jury. His Honour properly directed the jury that, having regard to the whole of the evidence, if they thought the applicant’s evidence that he accidentally fired the gun might reasonably be true they must acquit.
The applicant submitted, relying on Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71 ("Haile") at [60] (Bellew J, Bell CJ and Ierace J agreeing), that a summing up which contains appropriate directions as to the onus and standard of proof is insufficient to protect against a miscarriage of justice where a Liberato direction is required and not given. Haile was such a case. Bellew J concluded that there was a “clear risk that the jury may have understood that their task involved choosing between the two competing accounts”, which was heightened by the fact that the jury was not directed as to how to assess the evidence of the applicant or that the assessment was to be considered bearing in mind that the onus was on the Crown: at [77].
The present case was not of that kind, in the sense that it did not involve a choice between the applicant’s account and that of the other witnesses. As the Crown submitted, the Crown relied on parts of the applicant’s evidence, just as the applicant relied on parts of his evidence and the evidence of the other witnesses.
As the Crown further submitted, the jury was given a number of directions as to the onus and burden of proof in a number of different contexts. In light of the principal issue, it was plain from the directions given that the onus and burden lay with the Crown at all times. Further, the Liberato direction that the trial judge gave was sufficient to ensure that the members of the jury understood that they did not have to reach a positive state of acceptance of the applicant’s evidence before they must acquit. I accept the Crown’s submission that applicant has failed to establish that the directions in the present case were erroneous or gave rise to a miscarriage of justice: Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 at [121]-[141]).

Conclusion

I propose the following orders:

Leave is granted to extend the time for filing the notice seeking leave to appeal to 6 February 2024.

Leave to appeal is granted.

The appeal is dismissed.

GARLING J: In this rather complex, and somewhat unusual case, I am satisfied that the directions given by the trial judge were appropriate and did not give rise to any miscarriage of justice.
I agree with the orders proposed by Justice Mitchelmore and with her Honour’s comprehensive reasons.
WILSON J: I am also of the view that the directions given by the trial judge were appropriate in the circumstances of the trial, and having regard to the use that the parties sought to make of the applicant’s earlier evidence at the second trial. I agree with the orders proposed by Mitchelmore JA for the reasons her Honour has given.

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Decision last updated: 06 September 2024

Medium Neutral Citation:	Krivosic v R [2024] NSWCCA 166
Hearing dates:	17 June 2024
Date of orders:	06 September 2024
Decision date:	06 September 2024
Before:	Mitchelmore JA at [1]; Garling J at [107]; Wilson J at [109]
Decision:	(1) Leave is granted to extend the time for filing the notice seeking leave to appeal to 6 February 2024. (2) Leave to appeal is granted. (3) The appeal is dismissed.
Catchwords:	CRIME — appeals — appeals against conviction — murder — whether miscarriage of justice — whether Liberato direction complete or effective — where evidence of applicant from previous trial tendered — where both parties rely on evidence of applicant —trial judge directions sufficient in particular circumstances — no miscarriage of justice
Legislation Cited:	Crimes Act 1900 (NSW), s 18 Evidence Act 1995 (NSW), ss 38, 90 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases Cited:	De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71 Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 Harper v R [2022] NSWCCA 211 Hewitt v R [2021] NSWCCA 227 Johnson v Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 R v Anderson [2001] NSWCCA 488; (2000) 127 A Crim R 116 R v Krivosic (No.5) [2021] NSWSC 1566 Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16
Category:	Principal judgment
Parties:	Marko Krivosic (Applicant) Rex (Respondent)
Representation:	Counsel: J Stratton SC / T O’Rourke (Applicant) G Newton SC / S Traynor (Respondent) Solicitors: Jamieson Criminal Law (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2018/228553
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), publication of the image or name of “SJ” or “AB” or any material that would identify them in connection with the current proceedings is prohibited until 31 December 2041.
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: N/A Date of Decision: 3 December 2021 Before: Johnson J File Number(s): 2018/228553