R v Krivosic (No. 3) [2021] NSWSC 1560

Supreme Court New South Wales

Medium Neutral Citation: R v Krivosic (No. 3) [2021] NSWSC 1560 Hearing dates: 18 November 2021 Date of orders: 18 November 2021 Decision date: 18 November 2021 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: The Crown is granted leave under s.38 Evidence Act 1995 to cross-examine SJ on the specified parts of her evidence given at the first trial on 27 April 2021. Catchwords: CRIME – murder trial – application by Crown for leave to cross-examine witness under s.38 Evidence Act 1995 – application granted Legislation Cited: Evidence Act 1995 Cases Cited: R (Cth) v Petroulias (No 29) [2007] NSWSC 1005 R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12 Texts Cited: --- Category: Procedural rulings Parties: Regina (Crown) Marko Krivosic (Accused) Representation: Counsel: Ms M England; Mr BG Page (Crown) Mr N Steel (Accused)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Jamieson Criminal Law (Accused) File Number(s): 2018/228553 Publication restriction: ---

Judgment 1. JOHNSON J: During the course of the examination-in-chief of SJ by the Crown Prosecutor, an application has been made by the Crown under s.38 Evidence Act 1995 with respect to a number of discrete topics. 2. The Crown bases the application upon a comparison with, and contrasting of, what SJ said in examination-in-chief at the first trial of the Accused on 27 April 2021, with what has been said so far by her concerning a number of topics in this trial. 3. The Crown has identified some eight portions of evidence of SJ at the first trial, which are contained between pages 125 and 130 of the transcript of 27 April 2021. 4. The application is based upon SJ either giving evidence to a different effect here, or indicating a lack of recollection on a number of topics. 5. The Crown relies upon s.38(1)(b) and (c) Evidence Act 1995 in support of the application. It is submitted that there are prior inconsistent statements made by SJ and, additionally, in some respects there is a foundation for the Court to conclude that the witness may reasonably be supposed to have knowledge about certain matters and is not making a genuine attempt to give evidence concerning them. 6. Counsel for the Accused has opposed a grant of leave under s.38. It has been submitted that, in some respects, there is no significant difference between what is said in this Court and at the earlier trial. It is submitted as well that there are significant issues of credibility concerning aspects of the account of SJ. 7. In determining whether to grant leave to the Crown, the Court must have regard to the terms of s.38, as well as factors arising under s.192 Evidence Act 1995. I observe that the application is made whilst the witness, SJ, is still being examined-in-chief, with that being consistent with s.38(4) of the Act. 8. The pieces of evidence which have attracted the Crown application relate to different parts of the evidence of SJ given just under seven months ago, concerning aspects of considerable significance to the trial. 9. The Crown case is that the Accused entered the unit of SJ at Warwick Farm whilst a number of persons were present, including George Nassif, the deceased. It is the Crown case that the Accused was holding a firearm in his hand which he discharged, inflicting a fatal wound to Mr Nassif. 10. The parts of evidence given by SJ between pages 125 and 130 in the first trial on 27 April 2021 concern observations she made (in particular of the Accused) at the time when he rang the buzzer to be allowed entry to the unit block and ultimately to SJ's unit, how the Accused sounded, and then, once he arrived at the unit, what she observed as to his movements, what he said, his manner, how he interacted with Mr Nassif, both verbally and by means of behaviour. 11. In addition, SJ gave evidence at the first trial concerning what was said by the Accused to others in the unit and what he did with the firearm, in the sense of his movement of it and pointing it at others. 12. These are very significant issues in the trial. I accept, as counsel for the Accused has submitted, that there are issues with respect to the account given by SJ. It may be expected that there will be a challenge made to her evidence, which may include a challenge to her credibility in some respects. 13. I bear in mind that the purposes of s.38 include the Court having regard to the interests of justice, and that the public interest and the administration of justice may be served by the testing of the evidence of a witness by way of a s.38 examination. The grant of leave may permit a truer picture of the situation to be presented to the jury than would have been the case had the Crown been refused leave to cross-examine. It has been said that these considerations constitute the very purpose underlying s.38: R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12 at [81], [83]; R (Cth) v Petroulias (No 29) [2007] NSWSC 1005 at [14]. 14. I am satisfied that, in a number of respects, there is a clear prior inconsistent statement when comparing what has been said by the witness in this trial and in the former trial. The position may be a little less clear as to whether she is not making a genuine effort to give honest evidence in this trial. It is certainly open to argument that that is what is occurring in a number of respects, where she states she has limited recollection when seven months ago she had a clearer recollection. 15. By whichever pathway is adopted, I am satisfied it is appropriate to grant the Crown leave under s.38 Evidence Act 1995 to cross-examine SJ on the specified parts of her evidence given at the first trial on 27 April 2021, and leave is granted to that effect.