R v Krivosic (No. 6) [2021] NSWSC 1572

R v Krivosic (No. 6) [2021] NSWSC 1572

Although the further authority relied on by the Accused allowed the Court to consider the renewed application under the interests of justice test in s.130A Criminal Procedure Act 1986, no viable foundation was shown for manslaughter by criminal negligence. Callaghan v The Queen and Koani v The Queen depended on statutory duties and did not establish a common law situational or ad hoc duty applicable here. The proposed duty went beyond recognised categories of duty, and the Court would not extend them in the circumstances. Accordingly, there was no sufficient reason to depart from Harrison J's earlier ruling and manslaughter by criminal negligence was not left to the jury.

Jurisdiction
Australia
Judgment Date
09 December 2021
Procedural Posture
Criminal Proceedings on Indictment for Murder / Second Trial; Defence Application to Leave Manslaughter by Criminal Negligence to the Jury
Outcome
The Court declined to leave manslaughter by criminal negligence to the jury.
Legal Topics
['murder' 'manslaughter by Criminal Negligence' 'alternative Verdicts' 'duty of Care' 'section 130 a Criminal Procedure Act 1986']
['criminal Law' 'criminal Procedure'] ['murder' 'manslaughter by Criminal Negligence' 'alternative Verdicts' 'duty of Care' 'section 130 a Criminal Procedure Act 1986']

Case Brief

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Procedural Posture

Criminal Proceedings on Indictment for Murder / Second Trial; Defence Application to Leave Manslaughter by Criminal Negligence to the Jury

Legal Issues

  1. 1 ['Whether s.130A Criminal Procedure Act 1986 applied to the renewed application after Harrison J declined a similar application at the first trial.' 'Whether the interests of justice permitted the Court to revisit the earlier ruling.' 'Whether there was a viable evidentiary and legal foundation to leave manslaughter by criminal negligence to the jury.' 'Whether the Accused owed a legal duty of care to Mr Nassif in the circumstances of carrying a loaded and cocked firearm into the apartment.']

Ratio Decidendi

Although the further authority relied on by the Accused allowed the Court to consider the renewed application under the interests of justice test in s.130A Criminal Procedure Act 1986, no viable foundation was shown for manslaughter by criminal negligence. Callaghan v The Queen and Koani v The Queen depended on statutory duties and did not establish a common law situational or ad hoc duty applicable here. The proposed duty went beyond recognised categories of duty, and the Court would not extend them in the circumstances. Accordingly, there was no sufficient reason to depart from Harrison J's earlier ruling and manslaughter by criminal negligence was not left to the jury.

Court Disposition

The Court declined to leave manslaughter by criminal negligence to the jury.

Orders

  • ['Manslaughter by criminal negligence was not left as an available alternative verdict in the trial.']