R v Krivosic (No. 3) - [2021] NSWSC 1560

Supreme Court

New South Wales

Medium Neutral Citation: R v Krivosic (No. 3) [2021] NSWSC 1560
Hearing dates: 18 November 2021
Date of orders: 18 November 2021
Decision date: 18 November 2021
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
The Crown is granted leave under s.38 Evidence Act 1995 to cross-examine SJ on the specified parts of her evidence given at the first trial on 27 April 2021.

Catchwords:
CRIME – murder trial – application by Crown for leave to cross-examine witness under s.38 Evidence Act 1995 – application granted

Legislation Cited:
Evidence Act 1995

Cases Cited:
R (Cth) v Petroulias (No 29) [2007] NSWSC 1005
R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12

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)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Jamieson Criminal Law (Accused)

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

Judgment

JOHNSON J: During the course of the examination-in-chief of SJ by the Crown Prosecutor, an application has been made by the Crown under s.38 Evidence Act 1995 with respect to a number of discrete topics.
The Crown bases the application upon a comparison with, and contrasting of, what SJ said in examination-in-chief at the first trial of the Accused on 27 April 2021, with what has been said so far by her concerning a number of topics in this trial.
The Crown has identified some eight portions of evidence of SJ at the first trial, which are contained between pages 125 and 130 of the transcript of 27 April 2021.
The application is based upon SJ either giving evidence to a different effect here, or indicating a lack of recollection on a number of topics.
The Crown relies upon s.38(1)(b) and (c) Evidence Act 1995 in support of the application. It is submitted that there are prior inconsistent statements made by SJ and, additionally, in some respects there is a foundation for the Court to conclude that the witness may reasonably be supposed to have knowledge about certain matters and is not making a genuine attempt to give evidence concerning them.
Counsel for the Accused has opposed a grant of leave under s.38. It has been submitted that, in some respects, there is no significant difference between what is said in this Court and at the earlier trial. It is submitted as well that there are significant issues of credibility concerning aspects of the account of SJ.
In determining whether to grant leave to the Crown, the Court must have regard to the terms of s.38, as well as factors arising under s.192 Evidence Act 1995. I observe that the application is made whilst the witness, SJ, is still being examined-in-chief, with that being consistent with s.38(4) of the Act.
The pieces of evidence which have attracted the Crown application relate to different parts of the evidence of SJ given just under seven months ago,…

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. 3)

Details

AGLC: R v Krivosic (No. 3) [2021] NSWSC 1560
Case: [2021] NSWSC 1560
Decision Date: 18 November 2021

CaseChat Overview and Summary

The case of R v Krivosic (No. 3) involved the ongoing criminal trial of the defendant, Krivosic, who was facing charges of murder. The trial was taking place in an Australian court, and the Crown sought to cross-examine a particular witness in accordance with section 38 of the Evidence Act 1995. The nature of the dispute centred around the admissibility of the proposed cross-examination and the potential impact it would have on the proceedings.

The legal issues before the court primarily revolved around whether the Crown's application for leave to cross-examine the witness under section 38 of the Evidence Act 1995 should be granted. The Crown argued that the cross-examination was necessary to establish the credibility of the witness and to challenge inconsistencies in their testimony, which were critical to the case. The defence, on the other hand, contended that the proposed cross-examination was not relevant to the case and could unfairly prejudice the witness.

In reaching its decision, the court considered the statutory provisions and case law relating to section 38 of the Evidence Act 1995. The court concluded that the proposed cross-examination was relevant to the credibility of the witness and that the potential for prejudice did not outweigh the importance of establishing the truth. Consequently, the court granted the Crown's application for leave to cross-examine the witness. The final orders of the court allowed the Crown to proceed with the cross-examination as proposed.

Orders