R v Krivosic (No. 6) - [2021] NSWSC 1572

Supreme Court

New South Wales

Medium Neutral Citation: R v Krivosic (No. 6) [2021] NSWSC 1572
Hearing dates: 25 November 2021
Date of orders: 26 November 2021
Decision date: 09 December 2021
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
The Court declines to leave manslaughter by criminal negligence to the jury.

Catchwords:
CRIME – murder trial – second trial after jury unable to agree upon verdict at first trial – defence application to leave manslaughter by criminal negligence to jury – trial Judge declined same application at first trial – application of s.130A Criminal Procedure Act 1986 – deceased shot by pistol being held by Accused – issue at trial as to whether discharge of firearm deliberate or accidental – Crown case that pistol fired by Accused with intent to kill or to inflict grievous bodily harm – whether Accused owed duty of care to deceased – whether scope and content of hypothetical duty is ascertainable – Court declines to leave manslaughter by criminal negligence to the jury

Legislation Cited:
Criminal Procedure Act 1986
Criminal Code (Qld)
Criminal Code (WA)

Cases Cited:
Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
Callaghan v The Queen (1952) 87 CLR 115; [1952] HCA 55
Chapman v Gentle (1987) 28 A Crim R 29
Herron v Attorney General (NSW) (1987) 8 NSWLR 601
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
Koani v The Queen (2017) 263 CLR 427; [2017] HCA 42
Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
Martinez v R [2019] NSWCCA 153
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
R (Cth) v Petroulias (No. 1) (2006) 177 A Crim R 153; [2006] NSWSC 788
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Dirani (No. 8) [2018] NSWSC 1000
R v Doherty (1887) 16 Cox CC 306
R v Krivosic [2021] NSWSC 506
R v Krivosic (No. 5) [2021] NSWSC 1566
Mickelberg v R (No. 3) (1992) 8 WAR 236
R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316
R v Taktak (1988) 14 NSWLR 226

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: The Accused, Marko Krivosic, is charged by indictment that, on 22 July 2018 at Warwick Farm, he did murder George Nassif.
The Accused stood trial in April-May 2021 upon this charge before Harrison J and a jury. The jury was unable to agree upon a verdict and was discharged.
On 15 November 2021, the second trial of the Accused commenced before a jury and myself.

Manslaughter by Criminal Negligence

At the first trial, Harrison J refused to leave to the jury an alternative verdict of manslaughter by criminal negligence:

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. 6)

Details

AGLC: R v Krivosic (No. 6) [2021] NSWSC 1572
Case: [2021] NSWSC 1572
Decision Date: 09 December 2021

CaseChat Overview and Summary

In the case of R v Krivosic, the accused was facing a second trial for the murder of a deceased person, following an initial trial in which the jury was unable to reach a unanimous verdict. The matter was before the court as the accused sought to have the charge of manslaughter by criminal negligence left to the jury, a charge that had not been allowed by the trial judge during the first trial. The case involved the application of section 130A of the Criminal Procedure Act 1986, with the central issue being whether the deceased was shot by the accused's pistol deliberately or accidentally. The Crown argued that the accused intended to kill or cause grievous bodily harm to the deceased when the pistol was discharged.

The court had to determine whether the accused owed a duty of care to the deceased and, if so, whether the scope and content of such a hypothetical duty could be ascertained. The trial judge's earlier decision not to allow the jury to consider manslaughter by criminal negligence was under scrutiny, and the court needed to assess the validity of this decision in light of the current proceedings. The court examined the relevant legal principles and statutory provisions to ascertain whether the charge of manslaughter by criminal negligence should be put before the jury in the second trial.

The court found that the accused did not owe a duty of care to the deceased under the circumstances, and thus, the scope and content of any such hypothetical duty were not ascertainable. Consequently, the court declined to leave the charge of manslaughter by criminal negligence to the jury. The reasoning of the court was based on the specific facts of the case, the applicable legal principles, and the provisions of the Criminal Procedure Act 1986. As a result of this decision, the second trial proceeded with only the charge of murder against the accused.

Orders