R v Krivosic

Section 130A Criminal Procedure Act 1986

1. 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. Section 130A Criminal Procedure Act 1986 provides as follows: "130A Pre-trial orders and orders made during trial bind trial Judge (1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding. (2) If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless: (a) in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or (b) that order is inconsistent with an order made on appeal. (3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding. (4) In this section, pre-trial order means any order made or given after the indictment is first presented but before the empanelment of a jury for a trial. (5) To avoid doubt, this section extends to a ruling given on the admissibility of evidence."
3. 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. In R v Dirani (No. 8) [2018] NSWSC 1000, I said (at [11]-[14]) with respect to s.130A: "11 Section 130A operates with respect to this application and the Court is to apply the 'interests of justice' test contained in the section. 12 In this regard, I agree with the statement of Beech-Jones J in R v Obeid (No. 4) [2015] NSWSC 1442 at [12]: 'In my view the starting point for an application to which s 130A applies is to consider whether there has been some material change in circumstances since the previous ruling. This is the approach adopted for the revisiting of interlocutory orders in civil proceedings (see Douglas v John Fairfax & Sons Limited [1983] 3 NSWLR 126 at [134]). In so stating I do not consider the necessity to demonstrate a material change in circumstance exhausts the circumstances in which the interests of justice may warrant a departure from an earlier order.' 13 The approach to the application takes into account as well statements of principle contained in cases such as Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 at 160-161 [97] and R v Taylor (2007) 169 A Crim R 543; [2007] NSWCCA 104 at [31]. 14 The Court should consider whether, as a matter of discretion, it should revisit the earlier interlocutory ruling, having regard to the interests of justice and the question whether circumstances have changed materially since the first ruling."
5. 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. 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. 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. The Crown submitted that no such foundation had been demonstrated so that the present application should be declined.
9. 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. 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. In R v Krivosic (No. 5) [2021] NSWSC 1566, I outlined the Crown case against the Accused in the following way (at [8]-[18]): "8 It is the Crown case that, at about 17:11:00 on Sunday, 22 July 2018, the Accused, together with another person, entered the apartment of an acquaintance (SJ) in an apartment block at Warwick Farm. The Accused was holding a Browning .22 calibre pistol. The pistol discharged with Mr Nassif being shot once in the back and wounded fatally. Mr Nassif was present in the apartment together with a number of other persons. 9 The Crown has adduced evidence of a grievance between Mr Nassif and Andre Marques arising from a short sexual relationship in early 2018 between Mr Marques and Taylah Papadellis, the partner of Mr Nassif. Arising from this grievance, Mr Nassif demanded money from Mr Marques and, at one point, detained Mr Marques and subjected him to mistreatment as part of a demand for money from him. 10 On the afternoon of 22 July 2018, Mr Marques and others attended the Warwick Farm apartment at a time when Mr Nassif was present. There is evidence that Mr Nassif physically attacked Mr Marques in the corridor outside the apartment as part of the ongoing grievance between the two men. 11 While this was happening, Alana Delforce made contact with the Accused by SMS messages and a telephone call. Ms Delforce was an acquaintance of the Accused, who was a friend of Mr Marques. As will be seen, in those messages Ms Delforce requested that the Accused come to the apartment. Ms Delforce was asking the Accused to attend the Warwick Farm apartment because of the physical altercation taking place between Mr Nassif and Mr Marques. … 12 As it happens, Mr Marques and his companions left the Warwick Farm apartment block by 17:03:00 after Mr Marques gave $100.00 to a companion to be given to Mr Nassif. The altercation between Mr Nassif and Mr Marques had ended and Mr Marques had left the apartment block. 13 Ms Delforce had also departed the apartment block and driven away in her motor vehicle by 17:04:00. 14 Mr Nassif remained inside the apartment together with SJ, Ms Papadellis and Mark Salama. 15 At 17:11:00, the Accused and his companion entered the apartment block. They were each wearing hoodies and face coverings. The two men were visible on CCTV footage placing latex gloves on their hands as they moved through the building. The Accused had in his clothing a loaded Browning .22 calibre pistol which he had collected from his premises before setting out for the apartment at Warwick Farm. 16 At 17:13:00, the two men entered the lift to travel to SJ's apartment. Between that time and 17:16:00, the Accused entered the apartment and Mr Nassif was shot. The Accused and his companion then caught the lift to the ground floor before exiting the building by 17:17:00. 17 The Accused met with his girlfriend, Nina Gulic, and they left Sydney. Between 22 July and 6 August 2018, the Accused and Ms Gulic travelled by road to a variety of locations including Newcastle, Melbourne, Port Augusta, Coober Pedy and Perth. The Accused was arrested by police in Perth on 6 August 2018. 18 The issues in the first trial (which remain the same in the second trial) were summarised by Harrison J in R v Krivosic [2021] NSWSC 506 at [2]-[3]: '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 ...'"

The Reasoning of Harrison J at the First Trial

1. Harrison J identified the elements of the offence of manslaughter by criminal negligence in R v Krivosic at [4]: "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: (a) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and (b) it involved such a high risk that death or really serious bodily harm would follow as a result of the act."
2. 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. 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: "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. 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]. 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. 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. 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. 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. 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."

Submissions for the Accused

1. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. For these reasons, I declined to leave manslaughter by criminal negligence to the jury at this trial.
19. By way of postscript, I note that, on 3 December 2021, the jury returned a verdict of guilty of murder.

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