R v Krivosic

1. [1]

   HIS HONOUR: Marko Krivosic is charged with murder following the shooting death of George Nassif shortly after 5pm on 22 July 2018. Mr Nassif was then seated with others on a couch in an apartment on the sixth floor of a unit complex in Warwick Farm. Mr Nassif died from a single gunshot fired from a Browning .22 calibre pistol held by Mr Krivosic who was at the time standing some few metres away. Mr Krivosic had been given access to the apartment from the ground floor foyer by the occupier when she released the security door after he spoke to her on the intercom. Mr Krivosic took the lift to her floor and came into the apartment holding the gun. The shooting and the death occurred almost immediately.

2. [2]

   Mr Krivosic has responded to the Crown case by saying that the gun he was holding discharged accidentally. He has given evidence that he did not deliberately fire the gun and that he had neither an intention to kill nor to cause serious injury to Mr Nassif. Mr Krivosic has also maintained in the alternative that he went to the apartment in response to a telephone call that he received from Alana Delforce indicating that Mr Krivosic’s friend Andre Marques had been assaulted in the foyer of the apartment by several men including Mr Nassif. Mr Krivosic claims that he rushed there in order to prevent or terminate what he understood was the unlawful deprivation of Mr Marques’ liberty. The Crown has in those circumstances been actively required to disprove that the killing occurred in circumstances that gave Mr Krivosic a lawful excuse. Manslaughter upon the basis of excessive self-defence has therefore arisen as a live issue for the jury to consider.

3. [3]

   I indicated, and the parties accepted, that the jury should be directed as well with respect to the alternative verdict of manslaughter upon the basis of the commission by Mr Krivosic of an unlawful and dangerous act. Counsel for Mr Krivosic submitted in addition that I should direct the jury upon the availability of an alternative verdict of manslaughter based upon gross criminal negligence. The Crown opposed that course. I declined to direct the jury on that alternative verdict. These are my reasons for doing so.

4. [4]

   In order to prove manslaughter on this basis the Crown must prove each of the following beyond reasonable doubt:

   1. (1)

      the death of Mr Nassif; and

   2. (2)

      Mr Krivosic owed a legal duty of care to Mr Nassif; and

   3. (3)

      Mr Krivosic committed an act; and

   4. (4)

      the act caused (that is, was a substantial cause of) or accelerated, the death of Mr Nassif; and

   5. (5)

      Mr Krivosic’s act was negligent in that he breached the duty of care which he owed to Mr Nassif; and

   6. (6)

      Mr Krivosic’s act amounted to criminal negligence and merited criminal punishment for the offence of manslaughter because:

5. [5]

   The Crown’s principled opposition to directing the jury on this issue was based upon the single contention that, in the circumstances of this case, Mr Krivosic did not owe a legal duty of care to Mr Nassif.

Consideration

1. [6]

   Although a jury direction on this issue would require considerably more detail, Mr Krivosic maintained that with respect to the question of the duty allegedly owed by him, the direction would have included at least the following:

2. [7]

   In R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316, Simpson JA said this:

3. [8]

   With these words in mind, the task becomes one of determining what is the scope and content of the duty for which Mr Krivosic contends in this case. It is perhaps trite to observe that the duty said to be owed by him to Mr Nassif in the circumstances of this case cannot exist in a vacuum. For the putative duty to have any substance, the range of obligations with which Mr Krivosic was allegedly required to conform must be ascertainable and capable of description with reasonable precision. The breadth and depth of Mr Krivosic’s obligations will fall to be determined or assessed having regard to the boundaries and framework of their physical and historical relationship at the time of the acts and omissions capable of giving rise to the breach.

4. [9]

   In the present case, Mr Krivosic and Mr Nassif had no relationship of any sort at all. Mr Krivosic knew who Mr Nassif was, and that he had apparently humiliated Mr Marques and demanded money from him in the months prior to his death. Mr Krivosic and Mr Nassif knew some of the same people but were not themselves friends with each other. At the point when Mr Krivosic received the call from Alana Delforce to say that Mr Marques was being assaulted by Mr Nassif and others, Mr Krivosic and Mr Nassif were effectively and relevantly legal strangers. When Mr Krivosic entered the apartment with a cocked and loaded gun that discharged and killed Mr Nassif, Mr Nassif could have neither demanded nor expected anything from Mr Krivosic that distinguished Mr Krivosic from any other member of the community. It is not even as if Mr Nassif was the owner or occupier of the property into which Mr Krivosic gained access with the consent of the real occupier, SJ.

5. [10]

   It is difficult in these circumstances to formulate the terms of a duty owed to Mr Nassif by Mr Krivosic beyond the generic expectation that one person will not harm another. That is not in truth the formulation of a duty so much as a recognition of the philosophy that gives rise to the existence of duties in certain situations. For example, there could not, without more, ever be a duty imposed upon a stranger formulated with as little precision or specificity as one which recognises that they must not enter premises with a loaded gun or point a loaded gun at another stranger. The obvious and uncontroversial fact that doing so might be dangerous does not itself mean that a duty not to do so must exist.

6. [11]

   The authorities appear predominantly to deal with instances of a failure or omission to act. R v Moore to which I have already referred was such a case. That is perhaps understandable. Death allegedly arising from the fact that an accused person failed or neglected to take a particular positive step or follow a particular delineated course of action is easier to characterise as a breach of a duty: the step not taken or the course not followed can retrospectively be justified as the factual cause of the death that resulted. By way of contrast, a negative duty not to do a thing is philosophically more difficult to connect to some possible, yet unascertained, future outcome.

7. [12]

   In the present case, Mr Krivosic and Mr Nassif were not in a class of persons whose interrelationship circumscribed their mutual obligations, such as with a doctor and patient, or teacher and student, or occupant and entrant. Their relationship as members of the community was entirely at large. There existed no frame of reference from which the alleged obligations of one to the other could be gleaned. In short, it is not possible to say that Mr Krivosic was subject to an ascertainable duty to act towards Mr Nassif in a known and understood way.

8. [13]

   It is therefore in my opinion neither possible nor appropriate to attempt to formulate a direction to a jury in this case on the alternative verdict of manslaughter by criminal negligence if the legal duty of care that Mr Krivosic is alleged to have breached cannot be explained to them. By way of contrast, the direction concerning an alternative verdict of manslaughter by unlawful and dangerous act has easily identifiable legal boundaries to which the juries can meaningfully be directed. It is also difficult to see how the jury in the present case would even come to consider the alternative verdict of manslaughter by criminal negligence if the single count of murder, and the alternative verdict of manslaughter by unlawful and dangerous act, had already been decided favourably to Mr Krivosic.

9. [14]

   I am also conscious of the circumspection that is urged upon judges in extending categories of relationships that give rise to a previously unrecognised obligation to act. In my opinion, Mr Krivosic did not owe a legal duty to Mr Nassif not to enter the apartment where Mr Nassif was seated while Mr Krivosic was carrying a cocked and loaded gun. I do not understand Mr Krivosic to have formulated the suggested duty more specifically or more generally than that.