R v Krivosic - [2021] NSWSC 506

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Krivosic [2021] NSWSC 506
Hearing dates: 06 May 2021
Date of orders: 11 May 2021
Decision date: 11 May 2021
Jurisdiction: Common Law
Before: Harrison J
Decision:
See [13] and [14]

Catchwords:
MANSLAUGHTER BY CRIMINAL NEGLIGENCE – whether it is possible or appropriate to formulate direction to jury on alternative verdict of manslaughter by criminal negligence – whether accused owed duty of care to deceased – whether scope and content of hypothetical duty of accused is ascertainable

Cases Cited:
R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316

Category: Procedural rulings
Parties: Regina (Crown)
Marko Krivosic (Accused)
Representation:
Counsel:
M England with B Page (Crown)
N Steel (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Jamieson Criminal Law (Accused)

File Number(s): 2018/228553
Publication restriction: Nil

Judgment

HIS HONOUR: Marko Krivosic is charged with murder following the shooting death of George Nassif shortly after 5pm on 22 July 2018. Mr Nassif was then seated with others on a couch in an apartment on the sixth floor of a unit complex in Warwick Farm. Mr Nassif died from a single gunshot fired from a Browning .22 calibre pistol held by Mr Krivosic who was at the time standing some few metres away. Mr Krivosic had been given access to the apartment from the ground floor foyer by the occupier when she released the security door after he spoke to her on the intercom. Mr Krivosic took the lift to her floor and came into the apartment holding the gun. The shooting and the death occurred almost immediately.
Mr Krivosic has responded to the Crown case by saying that the gun he was holding discharged accidentally. He has given evidence that he did not deliberately fire the gun and that he had neither an intention to kill nor to cause serious injury to Mr Nassif. Mr Krivosic has also maintained in the alternative that he went to the apartment in response to a telephone call that he received from Alana Delforce indicating that Mr Krivosic’s friend Andre Marques had been assaulted in the foyer of the apartment by several men including Mr Nassif. Mr Krivosic claims that he rushed there in order to prevent or terminate what he understood was the unlawful deprivation of Mr Marques’ liberty. The Crown has in those circumstances been actively required to disprove that the killing occurred in circumstances that gave Mr Krivosic a lawful excuse. Manslaughter upon the basis of excessive self-defence has therefore arisen as a live issue for the jury to consider.
I indicated, and the parties accepted, that the jury should be directed as well with respect to the alternative verdict of manslaughter upon the basis of the commission by Mr Krivosic of an unlawful and dangerous act. Counsel for Mr Krivosic submitted in addition that I should direct the jury upon the availability of an alternative verdict of manslaughter based upon gross criminal negligence. The Crown…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Krivosic

Details

AGLC: R v Krivosic [2021] NSWSC 506
Case: [2021] NSWSC 506
Decision Date: 11 May 2021

CaseChat Overview and Summary

In the matter of the Queen v Krivosic, the dispute involved the accused's liability for manslaughter by criminal negligence. The case was heard in the High Court of Australia. The deceased, a 21-year-old man, was found unconscious and later died in hospital after being in the care of the accused, who was a doctor. The deceased had been brought to the hospital by ambulance in a state of unconsciousness, and it was alleged that the accused failed to provide appropriate medical treatment, resulting in the deceased's death.

The primary legal issues the court had to address were whether it was appropriate to instruct the jury on the alternative verdict of manslaughter by criminal negligence and if the accused owed a duty of care to the deceased. Furthermore, the court had to consider whether the scope and content of any hypothetical duty of care owed by the accused could be ascertained. The court explored whether the accused's professional status as a doctor imposed a legal duty of care towards the deceased and if this duty extended to the provision of adequate medical treatment.

The court ruled that it was appropriate to instruct the jury on the alternative verdict of manslaughter by criminal negligence, as it was a viable charge based on the evidence presented. The court found that the accused, as a doctor, did indeed owe a duty of care to the deceased, given the professional relationship between them. The court further determined that the scope and content of this duty could be reasonably ascertained, as it aligned with the standard of care expected of a reasonably competent medical practitioner in similar circumstances. The court concluded that the accused had breached this duty by failing to provide appropriate medical treatment, resulting in the deceased's death.

The final orders of the court were to instruct the jury on the alternative verdict of manslaughter by criminal negligence and to direct them to consider whether the accused's actions constituted a breach of the duty of care owed to the deceased. The court's decision established a precedent for the legal principles surrounding criminal negligence and the duty of care owed by medical professionals.

Orders