R v Krivosic (No. 4) - [2021] NSWSC 1561

Supreme Court

New South Wales

Medium Neutral Citation: R v Krivosic (No. 4) [2021] NSWSC 1561
Hearing dates: 19 November 2021
Date of orders: 19 November 2021
Decision date: 19 November 2021
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Leave is granted to the Crown under s.38 Evidence Act 1995 to cross-examine SJ by reference to her evidence at pages 140 and 141 of the transcript of 27 April 2021 concerning the alleged use of words by the Accused "Die you dog".

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

Legislation Cited:
Evidence Act 1995

Cases Cited:
R v Krivosic (No. 3) [2021] NSWSC 1560

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: Following the cross-examination of SJ, the Crown has made application in the absence of the jury for leave to cross-examine SJ under s.38 Evidence Act 1995.
Yesterday afternoon, I granted the Crown leave under s.38 to cross-examine SJ on a number of topics: R v Krivosic (No. 3) [2021] NSWSC 1560.
The particular topic which has attracted the application today arises from the evidence of SJ concerning the events in her unit on the late afternoon of 22 July 2018, when George Nassif was shot by a firearm, then in the hand of the Accused, Marko Krivosic.
The direct evidence as to what happened on that occasion, and what was said by the Accused, forms an important part of the evidence in this trial. The issues in the trial involve an assessment of what was the state of mind of the Accused at that time, when it is common ground that he was holding the firearm in his hand, with that firearm discharging and causing the death of Mr Nassif.
In the first trial of the Accused, SJ, on 27 April 2021, gave evidence (at pages 140 and 141) concerning the Accused saying to Mr Nassif, "Die you dog". The questions upon which the Crown seeks to rely in the present s.38 application were asked in cross-examination of SJ, where she was asked (T140):

“Q. Recall that? It’s not until that time that you disclose this comment that Marko said, ‘Die, you dog.’
A: Yeah.
Q: You hadn’t gone back in the meantime to tell the police about that?
A: No.
Q: Could I suggest the reason why you hadn’t done that is because that was never said at any stage?
A: No, it wasn’t the reason.
Q: See, I suggest that’s part of the sort of thing you would [not] forget to tell the police on the night that you did that interview.
A: No, the reason I didn’t tell them was because I don’t believe there was…

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. 4)

Details

AGLC: R v Krivosic (No. 4) [2021] NSWSC 1561
Case: [2021] NSWSC 1561
Decision Date: 19 November 2021

CaseChat Overview and Summary

The case of R v Krivosic involved a murder trial where the respondent was facing charges. The Crown made a further application for leave to cross-examine a witness under section 38 of the Evidence Act 1995. The court was tasked with deciding whether the leave should be granted to the Crown for this purpose. The primary legal issue before the court was whether the proposed cross-examination would be relevant and necessary for the administration of justice. The court had to weigh the importance of the witness's evidence against the potential prejudice that might arise from the cross-examination.

The court considered the nature and extent of the proposed cross-examination and its relevance to the issues at hand. It examined whether the cross-examination would assist in determining the truth of the matter by testing the reliability or credibility of the witness's evidence. The court also evaluated whether the leave would be in the interests of justice, taking into account the potential for unfair prejudice or confusion of the issues. After careful consideration, the court found that the proposed cross-examination was necessary and relevant for the administration of justice and granted the Crown leave to proceed with the cross-examination.

Consequently, the Crown was granted leave to cross-examine the witness as sought. The decision allowed the trial to proceed with the necessary examination of the witness's evidence, contributing to the pursuit of justice in the case. The outcome ensured that the trial could continue with the full examination of all relevant evidence, supporting the court's role in determining the truth of the matter before it. The final orders of the court were that leave was granted to the Crown to cross-examine the witness under section 38 of the Evidence Act 1995.

Orders