R v Krivosic (No. 2)

[2021] NSWSC 1559

Supreme Court

New South Wales

Medium Neutral Citation:	R v Krivosic (No. 2) [2021] NSWSC 1559
Hearing dates:	17 November 2021
Date of orders:	17 November 2021
Decision date:	17 November 2021
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Application for discharge of the jury is refused.
Catchwords:	CRIME – murder trial – reference in evidence to drug supply by Accused – application for discharge of jury – relevant discretionary considerations – discharge refused
Legislation Cited:	Crimes Act 1900
Cases Cited:	Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Texts Cited:	---
Category:	Procedural rulings
Parties:	Regina (Crown) Marko Krivosic (Accused)
Representation:	Counsel: Ms M England; Mr BG Page (Crown) Mr N Steel (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Jamieson Criminal Law (Accused)
File Number(s):	2018/228553
Publication restriction:	---

Judgment

1. JOHNSON J: The Accused, Marko Krivosic, is standing trial for the murder of George Nassif at Warwick Farm on 22 July 2018. The trial commenced with the empanelment of a jury on 15 November 2021.

2. The evidence has occupied 16 and 17 November 2021. This morning, the Crown called Alana Delforce to give evidence.

3. In the course of examination-in-chief of Ms Delforce, she was asked by the Crown (T240-241):

“Q. As at July 2018, you told police you'd known Marko for about three months, do you agree with that?

A. I think so, maybe, roughly.

Q. At that time, you used to buy drugs from him?

A. Yes.

Q. After you met him for about two months, you saw him nearly every single day?

A. Um, I'm not sure if it was every single day, but whenever I would need drugs and to, you know, get what I need, then, yeah, so it would be whenever, yeah.

Q. You told us before you were using ice everyday in July 2018?

A. Yes.”

4. During the course of her evidence, Ms Delforce observed on more than one occasion, that she was heavily on drugs in July 2018, so that her recollection of events on 22 July 2018 was significantly affected by drug use.

5. She noted that she had a number of other health issues at that time which may have been associated with her use of the drug “Ice”, in the sense that she spoke of a motor vehicle accident which itself led her to, amongst other things, drug usage.

6. At the completion of the evidence of Ms Delforce, the Court was about to take an adjournment when counsel for the Accused rose to indicate he wished to seek instructions from his client on a particular issue. At that point, I enquired of Mr Steel, counsel for the Accused, what he proposed should be said to the jury concerning the topic of the Accused's supply of drugs to Ms Delforce. He confirmed that that was the topic on which he was to seek instructions from his client (T250).

7. Upon resumption, counsel for the Accused made an application for the discharge of the jury. The application was based upon the evidence given by Ms Delforce which I have mentioned, which involved disclosure of the fact that she used to buy drugs from the Accused.

8. The Court heard submissions from the Crown and from counsel for the Accused on the discharge application (T251-268). The Crown opposed the application to discharge the jury.

9. It is necessary, at this point, to step back and say a little more about earlier stages of the proceedings involving the Accused.

10. The Accused was to stand trial as at April 2021, jointly with AO, who was charged with being an accessory after the fact to the murder of Mr Nassif.

11. On 26 April 2021, application was made by the Accused for a separate trial from AO. On that day, Harrison J ordered that the Accused and AO be tried separately. The reasons for his Honour making that order may be found in his Honour's judgment of that day. It was made clear by counsel for AO that his trial would be conducted upon the basis that he had no knowledge that the Accused had been involved in the death of Mr Nassif. Rather, was assisting to look for a firearm in the context (in the words of Harrison J) of the Accused’s "wider and more widely known criminal activities in the sale and distribution of illicit drugs" (pages 1-2, judgment, 26 April 2021). In that context, it was submitted for the Accused that there would be irreparable prejudice to him if he was tried jointly with AO.

12. It may be seen then that his Honour, in ordering separate trials, had regard to the inevitable consequence that a joint trial would see a substantial concentration on the alleged activities of the Accused in the supply of illegal drugs, because that would be AO’s approach to the defence of the charge against him. It would not be a passing issue in the trial – it would be a central issue in the trial of AO.

13. Understandably in those circumstances, his Honour ordered separate trials.

14. The Accused stood trial thereafter before Harrison J and a jury commencing on 27 April 2021. In due course, the jury in that trial was unable to agree upon a verdict. That position was reached apparently after there had been the loss of a number of days because of the ill health of members of the jury, which may have served to distract the jury in its deliberations and fractured the process. In any event, no verdict was returned and thus the retrial of the Accused commenced before me on 15 November 2021.

15. The charge of murder against the Accused arises in circumstances where it is said that he attended certain premises at Warwick Farm, where a number of persons were present. He was accompanied by another person. The evidence led so far indicates that it was a number of text messages, and apparently a telephone conversation as well, between Ms Delforce and the Accused in the late afternoon of 22 July 2018 that saw the Accused attend the Warwick Farm premises.

16. According to the text messages which are in evidence (Exhibit B, page 13), Ms Delforce was informing the Accused that another person was being attacked by Mr Nassif at the Warwick Farm premises.

17. The person who was being allegedly attacked in this way was Andre Marques, who was an associate of the Accused in July 2018.

18. At the first trial of the Accused, Mr Marques, in his evidence-in-chief, was asked by the Crown "You regularly bought drugs from Marko Krivosic?", to which Mr Marques agreed and indicated he bought “Ice” from the Accused once a week or twice a week and that, on occasions, Mr Marques would on-sell the drug (T341-342, 4 May 2021).

19. The Court was informed that the parties were conscious that Mr Marques would be asked questions along these lines and it was accepted at the first trial that there would be some evidence that Mr Marques bought drugs from Mr Krivosic, with that being pertinent to an understanding of the association between the two men.

20. The Accused gave evidence at the first trial, and in cross-examination, he said that Andre Marques bought “Ice” from him sometimes. He used to buy “Ice” for Mr Marques to sell as well and Mr Marques would on-sell it (T489-490, 5 May 2021).

21. Accordingly, at the first trial of the Accused, there was reference to the Accused selling drugs to Mr Marques. That evidence came from both Mr Marques and the Accused. The Court has been informed by counsel who appear in this trial (who also appeared in the first trial) that there was no direction sought nor given on the drug supply issue. It effectively formed part of the narrative of evidence in the trial and was said to bear upon the association between the Accused and Mr Marques.

22. The Accused stated in evidence at the first trial that, although he was carrying a firearm with him and it was produced by him, it discharged accidentally causing the fatal injury to Mr Nassif. In addition, the defence argument at the first trial relied upon self-defence by reference to s.418(2)(b) Crimes Act 1900, which allows lawful justification to be relied upon where the accused person believes that another person is being unlawfully detained.

23. At the first trial, then, the issue of drug supply arose in a manner that was apparently not controversial.

24. I have mentioned how the issue arose this morning in this trial. It was in fact a question from the Crown, which was based upon a statement made by Ms Delforce (paragraph 3, MFI15).

25. The argument in favour of discharging the jury, as advanced by Mr Steel, was that in this trial, Ms Delforce was a person who said that there was a regular supply of “Ice” to her by the Accused, that she herself spoke of health issues which related directly or indirectly to her drug use, and that this aspect could be contrasted with the issue as it arose in the first trial concerning the supply of drugs by the Accused to Mr Marques.

26. It was submitted that there is prejudice, and prejudice which cannot be remedied by a direction to the jury.

27. The Crown acknowledged that the evidence from Ms Delforce had not been given at the first trial. The submissions proceeded initially on the basis that there was to be evidence from Mr Marques about drug supply by the Accused to him in this trial, so that it would be necessary to consider the evidence of Ms Delforce in a context where there was going to be such evidence led in the same way as it had been at the first trial.

28. As the argument developed, however, the Crown, having considered the Crown's position, indicated that it was now proposed not to adduce evidence from Mr Marques in this trial concerning the supply of drugs by the Accused to Mr Marques, so that the only reference to drug supply for the purpose of this trial would be that which occurred this morning in the evidence of Ms Delforce.

29. The Crown submitted that this is a case in which a number of witnesses will indicate that they were drug users at the time. SJ, who has already commenced to give evidence and whose evidence was interrupted, so that Ms Delforce could be interposed, has indicated that. So this is not a case where Ms Delforce is the only person who is said to be a drug user.

30. The Crown also made clear that it is no part of the Crown case that the killing of Mr Nassif by a bullet discharged from the firearm held by the Accused was motivated by any drug supply issue or issue associated with drug supply.

31. The Crown submitted that the matter could be dealt with by means of a direction that would inform the jury that the evidence from Ms Delforce on this issue was only relevant to explain the association between Ms Delforce and the Accused as part of the explanation for their coming into contact with each other, and that it was not relevant in any other way and that the jury should be told it would be quite wrong for them to have regard to that evidence in determining whether the charge against the Accused had been proved.

32. It was submitted by Mr Steel that this evidence is significantly prejudicial because of what Ms Delforce said, but also what she said were the problems that she was experiencing at that time which may lead the jury to take a particularly negative view of this aspect, even though it was not said to be relevant to the determination of the issues in the trial.

33. The Court has a discretion as to whether the jury should be discharged when an application such as this is made. The Court has regard to the degree of prejudice of the material which has been introduced before the jury, the nature of any direction that may be given to the jury on that issue, the atmosphere of the trial and the place of this material in the context of this trial, as well as the point which has been reached in the trial itself: Crofts v The Queen (1996) 186 CLR 427 at 440-441; [1996] HCA 22.

34. There are some unusual features to this case. This is a retrial following a trial at which the jury could not agree. At the first trial, there was evidence and reference to drug supply by the Accused, but involving a different person, namely Mr Marques. The purpose of that evidence being before the Court was, effectively, to provide some context for the association between the two persons.

35. No direction was sought from the trial Judge and the issue was left as part of the evidence in the trial.

36. In the present trial, this issue has arisen effectively on the run and without notice because of the question asked by the Crown and the response given by Ms Delforce. There is some similarity between the context in this trial and the first trial. True it is that it is Ms Delforce and not Mr Marques who is the person who is giving this evidence. Of course, some context for the association between Ms Delforce and the Accused might be considered appropriate, given that it was Ms Delforce who effectively contacted the Accused late on the afternoon of 22 July 2018 to encourage him to attend the premises at Warwick Farm because of the events that were occurring there involving Mr Marques, Mr Nassif and others.

37. I have regard to the point which has been reached in the trial. This is the third day of the trial. It is fair to say that the longest witness expected in the trial in the Crown case was AB, who has completed his evidence. The officer-in-charge, Detective Sergeant Sweeney, has commenced his evidence. SJ has also commenced her evidence, which is not yet completed, and Ms Delforce gave her evidence this morning.

38. This is a relatively short trial, or at least it was expected to be, where the evidence itself may occupy a little more than a week, even allowing for the Accused to give evidence as he did at the first trial. The counsel in this trial were well aware of what happened in the first trial and the estimate for the trial was fixed on that basis.

39. The trial has proceeded this week in the restricted circumstances resulting from the COVID-19 pandemic. It is, in fact, the first criminal jury trial which has commenced in the Supreme Court since jury trials effectively ceased in June this year because of the impact of the Delta strain of COVID-19. Particular arrangements were put in place, which need not be detailed in this judgment, so that this trial is running. If the jury is discharged, a new trial date would need to be secured and the Court is simply unable to say at this stage whether that could be a trial in the balance of this year or at some time next year.

40. I note that when the Court raised that level of uncertainty with counsel for the Accused, he obtained instructions and he was specifically instructed to press the claim for discharge of the jury.

41. In the end, what the Court must do is make an assessment and reach a discretionary decision in the atmosphere of this trial. This is not a trial where there has, or is to be, no mention of drugs. The broad context is that a number of people at the Warwick Farm premises were users of drugs.

42. In this trial, as it stands now, there is some evidence from Ms Delforce that the Accused had supplied drugs to her. That was the position in the first trial, except it was not Ms Delforce who said that, it was Mr Marques.

43. I accept the fact that there are some more sensitive features associated with Ms Delforce. In giving her evidence, she appeared to be a person who had been affected by the consequences of drug use, which she readily acknowledged had impacted upon her memory. In fact, a large part of her evidence, both evidence in-chief and in cross-examination, involved being taken to two statements she made on 23 July 2018 (MFIs 14 and 15) and the text messages reproduced at page 13 of Exhibit B.

44. The jury would not think that this is a case that is free of drug use or, for that matter, drug supply in a very broad sense. The question really is what is the degree of prejudice that flows from the mention of that in this case through Ms Delforce, having regard to the issues in this trial.

45. I have given careful consideration to the position, having regard to the various factors that bear upon the exercise of discretion. The atmosphere in the trial is one which, as I have said, is not drug free. In the end, I have determined that the application to discharge the jury should not be allowed. The appropriate course, in my view, is to give a direction to the jury. The Crown has proposed MFI16 as the wording of a direction.

46. Having reached the position that I refuse the discharge application, I will give counsel a further opportunity to address on the content of the direction. I will also invite counsel to address on the question of the timing of the direction. The jury have been out of Court since about soon after 12 noon. It is now three o'clock. To give a direction immediately when they come back in will serve to emphasise and highlight this aspect. If counsel wish me to give it at that time, I will consider doing so.

47. Another approach is merely to tell the jury there have been a number of legal issues and to come back to this at some time when it will not attract the same degree of emphasis. If this direction is given to the jury when they come back, they will no doubt think that the Judge and the lawyers have spent the better part of three hours discussing this topic, thereby giving it a great deal of emphasis.

48. Accordingly, the decision which I reach is that the application for discharge of the jury is refused but, as I have said, I will hear counsel further on the question of what the jury should be told and when they should be told whatever they are to be told.

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Decision last updated: 14 December 2021