R v Krivosic [2021] NSWSC 506

Supreme Court New South Wales

Medium Neutral Citation: R v Krivosic [2021] NSWSC 506 Hearing dates: 06 May 2021 Date of orders: 11 May 2021 Decision date: 11 May 2021 Jurisdiction: Common Law Before: Harrison J Decision: See [13] and [14] Catchwords: MANSLAUGHTER BY CRIMINAL NEGLIGENCE – whether it is possible or appropriate to formulate direction to jury on alternative verdict of manslaughter by criminal negligence – whether accused owed duty of care to deceased – whether scope and content of hypothetical duty of accused is ascertainable Cases Cited: R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 Category: Procedural rulings Parties: Regina (Crown) Marko Krivosic (Accused) Representation: Counsel: M England with B Page (Crown) N Steel (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Jamieson Criminal Law (Accused) File Number(s): 2018/228553 Publication restriction: Nil

Judgment 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. 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. 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. In order to prove manslaughter on this basis the Crown must prove each of the following beyond reasonable doubt: 1. the death of Mr Nassif; and 2. Mr Krivosic owed a legal duty of care to Mr Nassif; and 3. Mr Krivosic committed an act; and 4. the act caused (that is, was a substantial cause of) or accelerated, the death of Mr Nassif; and 5. Mr Krivosic's act was negligent in that he breached the duty of care which he owed to Mr Nassif; and 6. Mr Krivosic's act amounted to criminal negligence and merited criminal punishment for the offence of manslaughter because: 1. it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and 2. it involved such a high risk that death or really serious bodily harm would follow as a result of the act. 1. 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.