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 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: ---
Category: Procedural rulings Parties: Regina (Crown)
Marko Krivosic (Accused)Representation: Counsel:
Solicitors:
Ms M England; Mr BG Page (Crown)
Mr N Steel (Accused)
Solicitor for Public Prosecutions (NSW) (Crown)
Jamieson Criminal Law (Accused)
File Number(s): 2018/228553 Publication restriction: ---
Judgment
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JOHNSON J: The Accused, Marko Krivosic, is charged by indictment that, on 22 July 2018 at Warwick Farm, he did murder George Nassif.
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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.
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On 15 November 2021, the second trial of the Accused commenced before a jury and myself.
Manslaughter by Criminal Negligence
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At the first trial, Harrison J refused to leave to the jury an alternative verdict of manslaughter by criminal negligence:
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- AGLC
- R v Krivosic (No. 6) [2021] NSWSC 1572
- Case
- [2021] NSWSC 1572
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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