R v Krivosic (No. 4)

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):

Soon after, she was asked by counsel for the Accused (T141):

The evidence of SJ in the present trial concerning the use of the term "Die you dog" has varied and has been, in my view, different from, and inconsistent with, that which she gave in the earlier trial some seven months ago.

I note that SJ has said that her memory of events is affected by the passage of time and the impact of her own drug usage.

In the course of R v Krivosic (No. 3), I said something (at [13]) concerning the purpose of s.38 and its practical operation, particularly in the context of a criminal trial.

The topic here is an important one in this trial. The evidence of SJ concerning the Accused allegedly saying "Die you dog", being a comment directed to the deceased, is important. If leave is granted under s.38, the Crown will have available in the trial the entirety of the evidence on this point.

I note that this issue is arising after cross-examination, so that, if leave is granted, there must be provided an opportunity to counsel for the Accused to further cross-examine SJ if he so wishes, so as to give effect to s.38(4) of the Act.

This is not a peripheral issue; it is a central issue in the trial. If the Crown is entitled to cross-examine on this aspect so that this evidence is placed before the jury, the jury will have the full picture of what SJ has said, in particular at the earlier trial when under cross-examination. It will be a matter for the jury to make its own assessment of the evidence of SJ, including on this specific topic.

I have considered the terms of s.192 Evidence Act 1995. I do not think that any feature of that section operates against a grant of leave in this case on this topic. As I have said, the Accused will have an opportunity to further cross-examine SJ with respect to the evidence to be given pursuant to the grant of leave, so that the position of the Accused is protected in that respect.

I grant leave 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".