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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Krivosic v The King

Details

AGLC: Krivosic v The King [2024] NSWCCA 166
Case: [2024] NSWCCA 166
Decision Date: 06 September 2024

CaseChat Overview and Summary

The matter before the court was an appeal against conviction for murder brought by the applicant, Krivosic. The applicant was convicted of murder in a previous trial and was sentenced to life imprisonment. The applicant sought to appeal against the conviction on the basis of a perceived miscarriage of justice. The central issue in the appeal was whether the trial judge had provided adequate directions to the jury, specifically whether the Liberato direction was complete and effective. The applicant argued that the trial judge had failed to properly direct the jury on the significance of the applicant's evidence from the previous trial. The Crown, on the other hand, contended that the trial judge's directions were sufficient in the particular circumstances of the case.

The court considered the arguments and examined the trial judge's directions to the jury. It was noted that both parties had relied on the applicant's evidence from the previous trial, and that the trial judge had given directions to the jury on the proper approach to such evidence. The court concluded that the trial judge's directions were sufficient and effective in the particular circumstances of the case, and that there was no miscarriage of justice. The court further found that the trial judge had given clear and comprehensive directions to the jury, which adequately addressed the issues raised by the applicant's evidence. The appeal was therefore dismissed.

The court's decision in this case highlights the importance of proper directions to the jury in criminal trials, particularly in cases where evidence from a previous trial is relied upon by both parties. The court's careful consideration of the trial judge's directions, and its conclusion that there was no miscarriage of justice, demonstrates the high standard of review that is applied in appeals against conviction. The final orders of the court were that the appeal be dismissed and that the conviction and sentence of the applicant stand.

Orders