R v Krivosic (No. 5) [2021] NSWSC 1566

R v Krivosic (No. 5) [2021] NSWSC 1566

The SMS messages were relevant to facts in issue because they bore directly on the accused's state of mind at about 17:00 on 22 July 2018, and the Crown's proposed redaction removed the prejudicial parole-related content without materially altering the message. The accused's evidence from the first trial contained answers capable of constituting admissions, was given voluntarily while represented by experienced counsel, and was accurately recorded in transcript form. Because the first trial ended with a jury disagreement rather than a conviction set aside for miscarriage of justice, the accused did not demonstrate unfairness under s.90 Evidence Act 1995 (NSW). The evidence was therefore...

Jurisdiction
Australia
Judgment Date
03 December 2021
Procedural Posture
Criminal Murder Trial / Procedural Rulings on Evidentiary Objections in Second Trial
Outcome
Evidentiary objections overruled; the accused's first trial evidence and the SMS messages in MFI6 were admitted.
Legal Topics
['murder' "admissibility of Accused's Evidence From Earlier Trial" 'admissions' 'discretion to Exclude Admissions Under S.90 Evidence Act 1995 (nsw)' 'sms Evidence' 'relevance' 'unfair Prejudice Under S.137 Evidence Act 1995 (nsw)']
['criminal Law' 'evidence'] ['murder' "admissibility of Accused's Evidence From Earlier Trial" 'admissions' 'discretion to Exclude Admissions Under S.90 Evidence Act 1995 (nsw)' 'sms Evidence' 'relevance' 'unfair Prejudice Under S.137 Evidence Act 1995 (nsw)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Murder Trial / Procedural Rulings on Evidentiary Objections in Second Trial

Legal Issues

  1. 1 ["Whether the accused's evidence given on 5 May 2021 at the first trial should be admitted in the Crown case at the second trial." "Whether the transcript of the accused's first trial evidence contained admissions and should be excluded under s.90 Evidence Act 1995 (NSW)." 'Whether SMS messages to and from the accused at 17:00:28 and 17:00:35 on 22 July 2018 should be admitted, including in redacted form.' 'Whether admission of the SMS messages would operate unfairly to the accused or should be excluded under s.137 Evidence Act 1995 (NSW).']

Ratio Decidendi

The SMS messages were relevant to facts in issue because they bore directly on the accused's state of mind at about 17:00 on 22 July 2018, and the Crown's proposed redaction removed the prejudicial parole-related content without materially altering the message. The accused's evidence from the first trial contained answers capable of constituting admissions, was given voluntarily while represented by experienced counsel, and was accurately recorded in transcript form. Because the first trial ended with a jury disagreement rather than a conviction set aside for miscarriage of justice, the accused did not demonstrate unfairness under s.90 Evidence Act 1995 (NSW). The evidence was therefore...

Court Disposition

Evidentiary objections overruled; the accused's first trial evidence and the SMS messages in MFI6 were admitted.

Orders

  • ['The evidence of the Accused given on 5 May 2021 in the first trial will be admitted in the Crown case in the second trial.' 'SMS messages contained in MFI6 will be admitted in evidence at the second trial.']