R v Krivosic (No. 1) - [2021] NSWSC 1501

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Krivosic (No. 1) [2021] NSWSC 1501
Hearing dates: 17 November 2021
Date of orders: 17 November 2021
Decision date: 17 November 2021
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
An order is made pursuant to ss.130(1) and 131A Evidence Act 1995 excusing the New South Wales Commissioner of Police from producing documents in response to the subpoena issued on behalf of the Accused on 12 November 2021 on the basis of public interest immunity.

Catchwords:
CRIMINAL LAW – murder trial – subpoena issued by defence – application to be excused from production of documents on ground of public interest immunity – claim for public interest immunity upheld

Legislation Cited:
Evidence Act 1995

Cases Cited:
Attorney General (NSW) v Kaddour and Turkmani [2001] NSWCCA 456
Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156
Cain v Glass (No 2) (1985) 3 NSWLR 230
Director of Public Prosecutions v Smith (1996) 86 A Crim R 308
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4
R v Francis (2004) 145 A Crim R 233; [2004] NSWCCA 85
R v Meissner (1994) 76 A Crim R 81
State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60

Texts Cited:
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Category: Procedural rulings
Parties: Regina (Crown)
Marko Krivosic (Accused)
Representation:
Counsel:
Ms M England; Mr BG Page (Crown)
Mr N Steel (Accused)
Mr DK Jordan (New South Wales Commissioner of Police)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Jamieson Criminal Law (Accused)
Crown Solicitor’s Office (New South Wales Commissioner of Police)

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

Judgment

JOHNSON J: By Notice of Motion dated 16 November 2021, the New South Wales Commissioner of Police (“the Commissioner”) seeks orders pursuant to ss.130(1) and 131A Evidence Act 1995, that the Commissioner be excused from producing documents, or parts thereof, in response to a subpoena issued on behalf of the Accused on 12 November 2021 on the basis of public interest immunity or, alternatively, on the basis of the common law principles of public interest immunity.
The Accused, Marko Krivosic, is standing trial on a charge of murder, with that trial having commenced with the empanelment of a jury on Monday, 15 November 2021.
In support of the claim for public interest immunity made by the Commissioner, the Court has been provided with an open affidavit of Assistant Commissioner Stacey Maloney dated 16 November 2021. The Court has had regard to that affidavit which is available to the legal representatives for the Crown and the Accused.
In the open affidavit of Assistant Commissioner Maloney, reference is made to confidential Exhibit SM1 and confidential Exhibit SM2. The Court has been provided with confidential Exhibits SM1 and SM2 and has examined them in accordance with the usual practice where a claim of this type is made.
In addition, Assistant Commissioner Maloney has sworn a…

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 (No. 1)

Details

AGLC: R v Krivosic (No. 1) [2021] NSWSC 1501
Case: [2021] NSWSC 1501
Decision Date: 17 November 2021

CaseChat Overview and Summary

In the case of R v Krivosic (No. 1), the defendant, Krivosic, faced a trial for murder. The dispute revolved around the admissibility of certain documents that had been subpoenaed by the defence. The Crown sought to compel the production of these documents, while Krivosic applied to be excused from producing them, asserting that they were protected by public interest immunity. The matter was heard and determined in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the documents in question were subject to public interest immunity and thus exempt from disclosure. Krivosic argued that the documents contained sensitive information that, if disclosed, would undermine the integrity and effectiveness of law enforcement and national security operations. The Crown, on the other hand, contended that the documents were relevant to the defence's case and should be disclosed to ensure a fair trial.

The court, in considering the application, applied the principles of public interest immunity, which are rooted in the balance between the public interest in the administration of justice and the public interest in maintaining confidentiality. The court found that the documents contained information of a highly sensitive nature that, if disclosed, would cause significant harm to ongoing operations and the safety of individuals. The court determined that the public interest in maintaining the confidentiality of these documents outweighed the need for their disclosure in this particular case. Consequently, the claim for public interest immunity was upheld.

As a result of the court's decision, the subpoenaed documents were not required to be produced. This ruling underscores the court's commitment to safeguarding sensitive information that is critical to public safety and national security, while also ensuring that the administration of justice is not unduly compromised.

Orders