R v Krivosic
[2021] NSWSC 444
•03 May 2021
Supreme Court
New South Wales
Medium Neutral Citation: R v Krivosic [2021] NSWSC 444 Hearing dates: 29 April 2021 Date of orders: 03 May 2021 Decision date: 03 May 2021 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: See [8]
Catchwords: EVIDENCE – where Crown seeks advanced ruling pursuant to s 192A of the Evidence Act on the admissibility or use of evidence proposed to be adduced – where attempts to secure witness’s attendance at court have been unsuccessful – where witness has made previous representation and is unavailable to give evidence about asserted fact – where it is highly probable that witness’s previous representation is reliable and not fabricated pursuant to s 65(2) of the Evidence Act
Legislation Cited: Evidence Act 1995 (NSW), ss 65, 192A
Category: Procedural rulings Parties: Regina (Crown)
Marko Krivosic (Accused)Representation: Counsel:
Solicitors:
M England with B Page (Crown)
N Steel (Accused)
Office of the Director of Public Prosecutions (Crown)
Jamieson Criminal Law (Accused)
File Number(s): 2018/228553 Publication restriction: Nil
Judgment
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HIS HONOUR: The Crown seeks an advance ruling pursuant to s 192A of the Evidence Act 1995 on the admissibility or use of evidence proposed to be adduced. The evidence in question is contained in the statement of Adam Robertson dated 30 August 2018. It is agreed for present purposes that all attempts to secure Mr Robertson’s attendance at Court have been unsuccessful and that he is a person who both made a previous representation and is unavailable to give evidence about an asserted fact: s 65(1) of the Act.
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Section 65(2) of the Act provides as follows:
65 Exception: criminal proceedings if maker not available
(1) …
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation--
(a) was made under a duty to make that representation or to make representations of that kind, or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) was made in circumstances that make it highly probable that the representation is reliable, or
(d) was--
(i) against the interests of the person who made it at the time it was made, and
(ii) made in circumstances that make it likely that the representation is reliable.
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The Crown contends that paragraphs (b) and (c) apply to the evidence, in the following circumstances.
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The events that give rise to these proceedings concern the death of George Nassif caused by a gunshot wound on 22 July 2018. The Crown alleges that Marko Krivosic shot Mr Nassif at an apartment in Warwick Farm and then fled the scene. Mr Robertson has provided a statement to the police in the following relevant terms:
“3. I currently live at xxx Lachlan Street, Warwick Farm with my mother, Tracy Robertson. We have lived at xxx Lachlan Street, Warwick Farm for the last two years. Xxx Lachlan Street, Farm is a gated unit complex. There is a large fence that runs right across the front of the unit complex with a underground car park with the entrance driveway at the front. There is 12 units in the unit complex with 6 units on each side face each other. Each unit is double storey and they are beside each other in a row. Our unit is the third last on the right-hand side as you look at it from the street. There is a small court yard at the back of the unit which is surrounded by a small brick fence and on top of the brick fence is a colourbond fence which is about a meter [sic] and half high.
…
5. About a month ago on Sunday around 5.30pm I was at home watching the footy and mum was upstairs sleeping, when I heard a knock on the back door. I thought this was strange that someone was knocking on the back door as it hard to access as you have to jump over a fence to knock on the back door.
6. I went to the back door where I open the main wooden door and the flyscreen to see who was knocking. When I opened the door, I saw a male standing directly at the back door looking around. The male was of middle eastern appearance, tan skin, clean shaven, he wasn’t very tall, solid build, wearing a black t-shirt. He didn’t have any weapons on him at the time. The only light on in the house was in the lounge room light. The back-yard light and the kitchen light was turned off and the sun had gone down about 5.00pm.He said, ‘Can you let me, I will give you $1000. I’m getting chased by the coppers’
I said, ‘Yeah come in’
I let him in as she [sic, he] was going to give me a lot of money.
7. He walked into the house through the kitchen and into the lounge room and sat down on the lounge. He kept getting up and down off the lounge looking through the front window. You can’t see much of the street from the front window. You can only see the units across from us and the front court yard area. He wasn’t saying much at all, he just told me a few times, ‘I’m getting chased by coppers’. He didn’t say what for.
8. While he was in the lounge room he removed money all of his money from his pants pocket and gave it to me. I [sic] gave me $250 and they were all $50 notes.9. After giving me the money he said, ‘Can I use your phone?’
9. After giving me the money he said, ‘Can I use your phone?’
I said, ‘Yeah’ and handed him my black Alcatel mobile phone.
He made a phone call in the lounge room, where he spoke in another language. I couldn’t understand what he was saying.
After he made the phone call, he said., ‘What’s the address next door’. He was referring to the unit complex situated on the corner of Forbes Street and Lachlan Street.
I said, ‘I don’t know, but our address is xxx Lachlan Street’
10. I then saw him send a text message from my mobile phone. After he sent the text message he continued to walk from the lounge to the front window. He would have done this about 20 to 30 times. After about five minutes he said, ‘I got to go’
11. I walked him to the back door and opened it for him. After he walked out of the back door, he jumped over the back fence and into the neighbour’s unit complex. The drop into the neighbouring unit complex is about 3 meters [sic].
12. After he jumped the back fence, I didn’t see where he went to. I have not seen him since. After he went, I went and watched the news on the television.
…
14. A few days later I deleted the text messages and phone call log from my mobile phone as I didn’t want anything to do with the murder.”
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I am informed that the Crown intends to rely upon material concerning the phone call made using Mr Robertson’s phone to support an inference that it was Mr Krivosic who came to Mr Robertson’s apartment at about 5.30pm on 22 July 2018.
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The Crown maintains that Mr Robertson’s statement was made shortly after the asserted facts occurred and in circumstances that make it highly unlikely that it is a fabrication. Alternatively or additionally, they contend that it was made in circumstances that make it highly probable that it is reliable.
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Despite his usual persuasive and helpful submissions, I am unable to accept Mr Steel’s contention that the statement does not satisfy either paragraph of s 65(2) of the Act. Applying common sense to the evidence concerned, it seems to me to be highly probable that the statement is reliable. It is difficult to conceive of circumstances in which a statement such as Mr Robertson’s statement would have been provided to the police if it were not generated by the very incidents that it describes. Moreover, the statement was provided to the police when they contacted Mr Robertson as the subscriber of the phone referred by him in the statement. Such circumstances make it highly unlikely in my view that anything contained in the statement is a fabrication.
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I consider that the portions of the statement which the Crown wishes to tender are admissible.
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Decision last updated: 08 December 2021
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