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.
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.
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.
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.
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.
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Consideration
Although a jury direction on this issue would require considerably more detail, Mr Krivosic maintained that with respect to the question of the duty allegedly owed by him, the direction would have included at least the following:
"The Crown must prove that Mr Krivosic owed a legal duty of care to Mr Nassif. Every person owes a duty to conduct himself or herself in a manner that he or she will not cause injury to another person in circumstances where a reasonable person in his or her position would have foreseen the risk of injury from such conduct to that other person.
In this case the Crown alleges that Mr Krivosic breached his duty and was negligent by entering the unit with a cocked loaded pistol with the safety off that he pointed towards Mr Nassif, where the discharge of the pistol resulted in the deceased being fatally shot."
In R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316, Simpson JA said this:
"[145] It is only the first of these elements that calls for consideration in the present case. It will be observed that that element is framed in general terms, that of the existence of a duty of care. That also is how the first element was framed by French CJ in Burns (at [20]). The plurality, however, stated the obligation more narrowly. Their Honours framed the duty element of the offence in terms of an obligation to do a specific act (at [97]). That, no doubt, was because criminal liability does not attach to an omission to act, unless that omission is of an act that the accused person is under a legal obligation to do: see R v Taktak (1988) 14 NSWLR 226 at 236-237. Failure to do an act that the person may be seen to have a moral obligation to do is insufficient: Burns, at [97].
[146] A conviction for manslaughter by criminal negligence constituted by an omission, or failure, to act can therefore be sustained only where the person accused was under a legal duty to act in a particular way - that is, to do the specific act the omission of which was the cause of death. Such a duty may arise:
• from a relationship recognised at common law as giving rise to such a duty: examples are a relationship of employer and employee; parent and child; doctor and patient (there are many more)
• from an express or implied statutory duty
• where the defendant has created a dangerous situation and subsequently fails to take steps to prevent the consequences of that dangerous situation (see R v Evans (Gemma) [2009] 1 WLR 1999; [2009] EWCA Crim 650.
[147] There has also been recent discussion suggesting that, at least for the purposes of tort law, new or 'novel' situations may arise in which a duty of care, not previously recognised, may be imputed: Caltex Refineries (QLD) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258. However, in Burns (in the context of criminal liability) the High Court urged 'circumspection' in extending categories of relationships that give rise to a previously unrecognised obligation to act (at [107]).
[148] In Burns at [20], citing Evans (Gemma) at [39], the Chief Justice held that whether, in a given set of circumstances, a duty of care exists is a question of law, to be decided by the judge. However, the existence (or otherwise) of a duty of care depends upon the existence of relevant facts, determination of which lies in the province of the jury. There may be practical difficulties in the application of this principle in a jury trial. At the point when it is necessary for a trial judge to decide whether a duty of care exists, he or she will not know what facts the jury has found. It would, of course, be possible to direct the jury, hypothetically, that if a particular set of facts is found to exist, then a duty of care exists. That may be feasible if the determination depends upon one fact or even a limited number of facts: it becomes unworkable if the hypothesised factual basis for proposing the duty includes multiple facts. How many (or which, or which combination) of the postulated facts will suffice to establish the duty? Do the postulated facts (or any of them) have to be found beyond reasonable doubt? Does the jury have to be unanimous on the finding of the facts?
[149] In part, these difficulties were recognised in Evans (Gemma), at [45]. It is of interest that, in Evans (Gemma), the court consistently, throughout the judgment, disjunctively coupled 'a duty of care' with 'a duty to act'. I take 'a duty to act' to mean 'to act in the particular respect, omission to do which was the cause of death'. This more closely approaches the manner in which the plurality in Burns expressed the duty, as a particular act that the accused person was under a legal obligation to do.
[150] Nevertheless, difficult questions can arise. In Evans (Gemma) the Court of Appeal gave an illustration. It is undoubted that a doctor owes a patient a duty of care. It is not always so clear that a doctor/patient relationship exists. The Court of Appeal cited the circumstances where a doctor, on a social occasion, is asked a casual (medical) question.
[151] Merely finding that a duty of care exists does not end the inquiry. The more apposite question is: what does the duty entail? This question is often entangled with the question that arises with respect to the second element - breach of the duty. A finding of breach of duty requires an appreciation of the boundaries of the duty. The question of breach is not answered only by reference to the nature of the relationship but will frequently depend upon the facts alleged - and proved - by the prosecution. Whether the issue is approached, as by the Chief Justice in Burns, by reference to a generalised 'duty of care' (in which case the key question is breach), or as by the plurality, by reference to an obligation to act in a particular way, the answer will depend upon findings of fact going outside the existence of the relationship asserted.
[152] That does not necessarily mean that, in a proper case, the first element cannot be decided in advance of the evidence in the trial. More often, however, whether a duty of care is shown to exist, and, more importantly, what such a duty entails, will depend upon relevant findings of fact by the jury.
[153] Where there are disputed issues of fact relevant to the existence or otherwise of a duty of care, or its content, a ruling as to that existence may only be made contingently.
[154] These considerations make it plain that a ruling as to the existence of a duty to do a particular act can rarely (if ever) be made in advance of a jury determination of the facts."
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.
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.
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.
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.
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.
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.
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.
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Amendments
08 December 2021 - [9] name changed
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Decision last updated: 08 December 2021