R v Krivosic (No. 6)

1. [1]

   JOHNSON J: The Accused, Marko Krivosic, is charged by indictment that, on 22 July 2018 at Warwick Farm, he did murder George Nassif.

2. [2]

   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.

3. [3]

   On 15 November 2021, the second trial of the Accused commenced before a jury and myself.

Manslaughter by Criminal Negligence

1. [4]

   At the first trial, Harrison J refused to leave to the jury an alternative verdict of manslaughter by criminal negligence: R v Krivosic [2021] NSWSC 506.

2. [5]

   In advance of the second trial, Mr Steel, counsel for the Accused, informed the Court that he wished to make further application for manslaughter by criminal negligence to be left to the jury. The Court gave directions for outlines of submissions to be furnished by the parties on this issue. Written submissions were furnished on behalf of the Accused (MFI37) and the Crown (MFI38). The Crown opposed the application for manslaughter by criminal negligence to be left to the jury at this trial.

3. [6]

   The Court heard submissions on this application on 25 November 2021 (T741-747). On 26 November 2021, I ruled that the Court would not leave manslaughter by criminal negligence as an available alternative verdict in this trial and that my reasons for this conclusion would be published in due course (T752).

4. [7]

   This judgment contains my reasons for declining to leave manslaughter by criminal negligence to the jury in this trial.

Section 130A Criminal Procedure Act 1986

1. [8]

   The Crown submitted that it was necessary for the Court to determine whether the Accused should be permitted to advance this application given that Harrison J declined a similar application at the first trial. It was submitted that his Honour’s decision constituted an order for the purpose of s.130A Criminal Procedure Act 1986, so that the Court should regard itself as being bound by Harrison J’s ruling unless the opinion was formed that it would not be in the interests of justice for Harrison J’s decision to be binding.

2. [9]

   Section 130A Criminal Procedure Act 1986 provides as follows:

3. [10]

   Before the enactment of s.130A, there was scope for the principle of judicial comity to operate where a trial Judge was asked to revisit a ruling made by another Judge in the same proceedings: R (Cth) v Petroulias (No. 1) (2006) 177 A Crim R 153; [2006] NSWSC 788 at [21]-[54].

4. [11]

   In R v Dirani (No. 8) [2018] NSWSC 1000, I said (at [11]-[14]) with respect to s.130A:

5. [12]

   The phrase “interests of justice” is one of wide import: Herron v Attorney General (NSW) (1987) 8 NSWLR 601 at 613; Chapman v Gentle (1987) 28 A Crim R 29 at 32. The meaning of the phrase is to be considered in its statutory context. The purpose of s.130A is to provide for a measure of certainty and finality with pretrial orders and other orders caught by the section, subject to the trial Judge in later proceedings forming the opinion that “it would not be in the interests of justice for that order to be binding”. In this context, the “interests of justice” include ensuring that the accused person has a fair trial, the public interest in the due administration of justice, and the interests of the Crown and the community: Mickelberg v R (No. 3) (1992) 8 WAR 236 at 251; Chapman v Gentle at 32.

6. [13]

   Mr Steel did not concede that s.130A applied to this application, but he argued, in any event, that the interests of justice test would be satisfied in this case.

7. [14]

   The foundation for this application did not arise from any factual difference between the evidence at the first and second trials. Rather, the application arose from further authority upon which counsel for the Accused relies in support of the application. He submitted that a viable basis had been demonstrated for an alternative verdict of manslaughter by criminal negligence to be left to the jury in this case.

8. [15]

   The Crown submitted that no such foundation had been demonstrated so that the present application should be declined.

9. [16]

   I am satisfied that s.130A does apply to this application. The Court should consider whether, as a matter of discretion, it should revisit the ruling made by Harrison J. In doing so, the Court will have regard to the interests of justice, including the question whether circumstances have changed since the first ruling. The existence of further authority on the point is capable of satisfying the interests of justice test so as to open the door to the Court considering whether manslaughter by criminal negligence should be left to the jury at the second trial.

10. [17]

    I accept that it is open to counsel for the Accused to renew the application refused by Harrison J at the first trial, relying upon further authority.

The Crown Case Against the Accused

1. [18]

   In R v Krivosic (No. 5) [2021] NSWSC 1566, I outlined the Crown case against the Accused in the following way (at [8]-[18]):

The Reasoning of Harrison J at the First Trial

1. [19]

   Harrison J identified the elements of the offence of manslaughter by criminal negligence in R v Krivosic at [4]:

2. [20]

   His Honour declined to leave manslaughter by criminal negligence at the first trial in circumstances where he was not satisfied that the Accused owed a legal duty of care to Mr Nassif.

3. [21]

   After referring to relevant legal principles summarised by Simpson JA in R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 at [145]-[154], his Honour gave reasons (at [8]-[14]) for his conclusion that no relevant duty of care existed as between the Accused and Mr Nassif at the relevant time:

Submissions for the Accused

1. [22]

   Mr Steel submitted that manslaughter by criminal negligence would arise in this case in the event that the jury was not satisfied beyond reasonable doubt that it was a deliberate act of the Accused which caused the pistol to discharge, thereby inflicting the fatal wound upon Mr Nassif. He submitted (correctly) that, if the jury was not satisfied beyond reasonable doubt that the Accused deliberately fired the pistol, the Accused would be entitled to be acquitted of murder and of manslaughter by unlawful and dangerous act.

2. [23]

   Counsel for the Accused relied upon Callaghan v The Queen (1952) 87 CLR 115; [1952] HCA 55 in support of the submission that the Accused owed a legal duty of care to Mr Nassif. It was submitted that this arose under the common law which imposed a general duty on all people who were doing a dangerous act, or who have charge of anything dangerous, to take precautions to avoid harming other people. It was submitted that this principle, which emerged from R v Doherty (1887) 16 Cox CC 306 (referred to in Callaghan v The Queen), was capable of applying in the present circumstances.

3. [24]

   It was noted that the decision in Callaghan v The Queen was not referred to in submissions before Harrison J, and that application of the decision provided a foundation for manslaughter by criminal negligence to be left to the jury in the present trial.

4. [25]

   Given the common law duty expressed in R v Doherty and confirmed in Callaghan v The Queen, it was submitted that it would be open for a jury to find that the Accused owed a duty of care to Mr Nassif as he had charge of something dangerous, being a loaded and cocked firearm, and he was doing a dangerous act in entering SJ’s apartment with that firearm where he knew people were present, including Mr Nassif. It was submitted that it would be open to the jury to find that the Accused’s duty in these circumstances was consistent with that identified in these cases, being a duty to take ordinary precautions to avoid harming other people.

5. [26]

   Mr Steel sought to rely as well, upon part of the judgment of Windeyer J in Pemble v The Queen (1971) 124 CLR 107 at 138-139; [1971] HCA 20.

6. [27]

   It was submitted that it would be open to the jury to find that the Accused breached the duty of care he owed to Mr Nassif by omitting to take ordinary precautions to avoid harming Mr Nassif, by not applying the safety catch on the pistol and/or failing to ensure that the pistol was not pointed towards, or directly at, Mr Nassif.

7. [28]

   It was submitted that it would be open to the jury to find that the consequence of the Accused’s failure to take those ordinary precautions in this case was the death of Mr Nassif and that the breach of this duty was so grave as to merit criminal punishment for the offence of manslaughter.

8. [29]

   Counsel for the Accused submitted that there was an evidentiary basis for this alternative verdict being left to the jury from the evidence of the Accused at the first trial, with that evidence having been tendered by the Crown, and admitted by the Court, at the second trial: R v Krivosic (No. 5) at [38]-[95]. That evidence included the Accused’s knowledge that the pistol already had ammunition in it and was cocked. In addition, the Accused knew that the safety catch was not on and he had been shown by a friend how to use the pistol. He knew that the pistol was in a position that it could be fired, but he was not thinking about safety because it never crossed his mind (T661-662). The Accused had admitted at the first trial that he entered SJ’s apartment with his arm outstretched, holding a loaded pistol which he pointed at Mr Nassif (T688). In cross-examination, the Accused said that whilst he was not directly aiming the pistol at Mr Nassif, it was pointing at the centre of Mr Nassif’s back and that he was pointing it at him on purpose (T704).

9. [30]

   Mr Steel submitted that, based upon this evidence, a verdict of the jury would be viable on the basis of manslaughter by criminal negligence, given that the Accused was in charge of the pistol (which was something dangerous) and that he was doing a dangerous act in entering the apartment with it in a cocked and loaded state capable of discharge with lethal force. It was submitted that the Accused owed a duty to Mr Nassif to take ordinary precautions to avoid harming him, or accidentally killing him, such as not pointing the pistol at him and keeping the safety catch on.

10. [31]

    In these circumstances, it was submitted that manslaughter by criminal negligence should be left to the jury in this trial.

Submissions for the Crown

1. [32]

   The Crown submitted that no basis had been demonstrated under s.130A Criminal Procedure Act 1986 for the Court to reach a different conclusion to that arrived at by Harrison J at the first trial.

2. [33]

   It was submitted that the conclusion reached by Harrison J concerning the absence of a duty of care between the Accused and Mr Nassif was consistent with the principles in R v Taktak (1988) 14 NSWLR 226 and Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35. In Burns v The Queen, caution was urged (at [107]) before enlarging the categories of legal duty for the purpose of manslaughter by criminal negligence.

3. [34]

   The Crown submitted that the categories of legal duty identified in R v Taktak and Burns v The Queen did not extend to encompass the suggested duty alleged to arise in this case between the Accused and Mr Nassif.

4. [35]

   It was submitted that Callaghan v The Queen was dealing with a specific provision of the Criminal Code (WA) so that the duty of care involved there was a form of statutory duty, which fell within the taxonomy of duties identified in R v Taktak and Burns v The Queen.

5. [36]

   The Crown submitted that the Accused was not assisted by Callaghan v The Queen nor Pemble v The Queen. It was submitted that Pemble v The Queen is not relevant to the issue here, being the existence and nature of any duty of care. The facts in Pemble v The Queen were different because the case concerned a homicide in the context of an intimate relationship (where the relevant duty could be said to arise) as opposed to the suggested relationship between the Accused and Mr Nassif who were, at best, acquaintances.

6. [37]

   In these circumstances, the Crown submitted that there was no reason to doubt the correctness of Harrison J’s order at the first trial, so that the Court should not revisit his Honour’s order declining to leave manslaughter by criminal negligence to the jury.

Decision

1. [38]

   I have kept in mind the principle whereby a trial Judge ought leave manslaughter to a jury in a murder trial where it is reasonably open on the evidence and where such a verdict is viable: Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [39], [100]-[102]; James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [19]-[23]; Martinez v R [2019] NSWCCA 153 at [78].

2. [39]

   If a viable foundation has been demonstrated for manslaughter by criminal negligence to be left to the jury in this trial, then a proper foundation would exist for the Court to revisit his Honour’s decision by operation of the interests of justice test in s.130A Criminal Procedure Act 1986.

3. [40]

   The Crown case at trial is based upon the Accused discharging the pistol with intent to kill or intent to inflict grievous bodily harm. The Crown does not rely upon reckless indifference to human life.

4. [41]

   It was the Crown case that, far from there being an accidental discharge of the firearm, the Accused came to the apartment block in an angry state intending to punish Mr Nassif by inflicting upon him, at least, grievous bodily harm. The Accused was armed with a loaded pistol which he brought from his premises. He put on latex gloves as he entered the apartment block. In addition, the Accused covered his head with a hoodie and his face with a windbreaker for the purpose of disguising his appearance. It was the Crown case that, after shooting Mr Nassif once in the back, the Accused then kicked out at Mr Nassif and pistol-whipped him once to the head before departing the apartment. It was common ground at the trial that the Accused thereafter fled to Victoria, South Australia and Western Australia before being arrested in Perth on 6 August 2018.

5. [42]

   An issue was raised at the trial, through the evidence of the Accused, in which he said that the pistol discharged accidentally as a result of physical contact with him in the apartment doorway by his companion, AB. This was a disputed issue at the trial in which the Crown called AB as a witness.

6. [43]

   Against this background, if the jury was not satisfied beyond reasonable doubt that the Accused intended to kill or cause grievous bodily harm to Mr Nassif at the time the pistol discharged, then consideration would turn to manslaughter by unlawful and dangerous act.

7. [44]

   The present defence application would see an additional alternative verdict being left to the jury by way of manslaughter by criminal negligence, in circumstances where he would otherwise be acquitted both of murder and manslaughter by unlawful and dangerous act. In effect, the Accused sought an alternative verdict to be left to the jury which would expose him to conviction upon a basis which the Crown did not seek in this trial.

8. [45]

   The offence of manslaughter by criminal negligence takes, as a starting point, the existence of a duty of care owed by the accused person to the deceased: Lane v R at [58].

9. [46]

   I accept the Crown’s analysis with respect to relevant legal principles. The decision in Callaghan v The Queen arose under the Criminal Code (WA) where statutory duties arose under ss.266 and 291A of the Code. The classification or taxonomy of duties of care in R v Taktak (at 243-244) and Burns v The Queen (at [22], [97]), include a duty imposed by statute. The duty under consideration in Callaghan v The Queen was such a duty.

10. [47]

    Further, Callaghan v The Queen involved the driving of a motor vehicle, a context far removed from the present case. It is, of course, well recognised at common law that a driver of a motor vehicle owes a duty of care to other road users for the purpose of the law of manslaughter by criminal negligence: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [56].

11. [48]

    The existence of a statutory duty under s.289 Criminal Code (Qld) also provided a foundation for manslaughter arising out of failure to use reasonable care and take reasonable precautions in the use and management of a firearm in Koani v The Queen (2017) 263 CLR 427; [2017] HCA 42. The High Court referred, in that respect, to Callaghan v The Queen where s.266 Criminal Code (WA) is expressed in similar terms to s.289 Criminal Code (Qld): Koani v The Queen at [3].

12. [49]

    It was the existence of a statutory duty which was said to have been breached which raised the question of manslaughter by criminal negligence in Callaghan v The Queen and Koani v The Queen.

13. [50]

    What is proposed in the present case goes beyond the categories of duty which have been identified authoritatively and recently by the High Court of Australia in Burns v The Queen at [22], [97]. Although R v Taktak and Burns v The Queen were concerned principally with manslaughter by omission to act, I accept that the same classification or taxonomy of duties arises for consideration and application in a case such as this.

14. [51]

    I do not consider that the Accused is assisted by Pemble v The Queen which concerns a different scenario where a duty of care may arise because of the domestic relationship between the accused person and the deceased.

15. [52]

    I do not accept the submission for the Accused, based upon R v Doherty, that a type of situational or ad hoc duty of care arises under the common law so as to require manslaughter by criminal negligence to be left to the jury in this case.

16. [53]

    In Burns v The Queen, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed (at [107]) that courts must be circumspect in identifying categories of relations that give rise to a previously unrecognised legal obligation to act. I have kept this statement in mind in determining not to accede to the defence application in this case.

17. [54]

    Having considered the arguments advanced by the parties, I do not consider that an appropriate foundation has been demonstrated to reach a different conclusion to that expressed by Harrison J at the first trial.

18. [55]

    For these reasons, I declined to leave manslaughter by criminal negligence to the jury at this trial.

19. [56]

    By way of postscript, I note that, on 3 December 2021, the jury returned a verdict of guilty of murder.