Citation: R v Krivosic [2021] NSWSC 506
Court: Supreme Court of New South Wales
Date: 11 May 2021
Judge(s): Harrison J
Background
The accused was charged with murder following the shooting death of a man who was seated on a couch in a sixth-floor apartment at Warwick Farm on 22 July 2018. The accused entered the apartment carrying a loaded and cocked Browning .22 calibre pistol, and the deceased was killed almost immediately by a single gunshot.
The accused maintained that the gun discharged accidentally and that he had no intention to kill or cause serious injury. He also raised a claim that he attended the apartment to prevent the unlawful detention of a friend, bringing excessive self-defence into play as a live issue for the jury.
The trial proceeded with the jury being directed on murder, manslaughter by excessive self-defence, and manslaughter by unlawful and dangerous act. Counsel for the accused further sought a direction on a fourth alternative: manslaughter by criminal negligence. The Crown opposed that course, and Harrison J declined to give the direction.
Legal Issues
- Whether the accused owed a legal duty of care to the deceased in the circumstances of the case.
- Whether, in the absence of an ascertainable duty of care, it was possible or appropriate to formulate a jury direction on the alternative verdict of manslaughter by criminal negligence.
- Whether the relationship between the accused and the deceased fell within any recognised category capable of grounding such a duty.
Decision
To establish manslaughter by criminal negligence, the Crown must prove beyond reasonable doubt that the accused owed a legal duty of care to the deceased, committed an act that breached that duty, and that the breach amounted to criminal negligence carrying such a high risk of death or really serious bodily harm that it merited criminal punishment. The Crown's opposition rested on a single contention: no such duty existed on the facts.
Harrison J accepted the Crown's position. The accused and the deceased shared no recognised relational category of the kind that generates mutual legal obligations, such as doctor and patient, employer and employee, or occupier and entrant. Their relationship was, in the court's words, "entirely at large," with no frame of reference from which ascertainable duties could be derived.
The court drew a distinction between cases involving an omission to act (where a duty to do a specific positive step can more readily be identified and explained) and cases involving a negative act of the kind alleged here. Entering an apartment carrying a loaded weapon pointed at another person is a positive act, but framing a corresponding negative duty with sufficient precision to direct a jury proved unworkable on these facts.
Harrison J concluded that a jury direction on criminal negligence manslaughter could not be formulated meaningfully because the duty allegedly owed by the accused could not be explained to the jury in legal terms. The court also noted the High Court's instruction to exercise circumspection before extending duty categories to previously unrecognised relationships, and observed that the jury would in any event be unlikely to reach this alternative verdict if they had already resolved the murder charge and the unlawful and dangerous act alternative in the accused's favour.
Orders Made
No orders were made in this decision.
Key Takeaways
- A jury direction on manslaughter by criminal negligence is neither possible nor appropriate where the legal duty of care alleged cannot be articulated with sufficient precision to be explained to a jury.
- The Supreme Court confirmed that the existence of a duty of care is a question of law for the trial judge, but its existence depends on underlying facts that may fall to the jury, creating practical difficulties in multi-fact hypothetical directions.
- Where an accused and a deceased share no recognised relational category at common law (such as doctor and patient, employer and employee, or occupier and entrant), a court will not readily infer a legal duty of care capable of grounding criminal liability.
- Following R v Moore, the court reiterated the High Court's call for circumspection in extending duty categories to novel relationships in the criminal context, particularly where no specific obligation to act can be identified.
- The distinction between omissions (where a positive duty to act in a particular way can often be specified) and positive acts (where a corresponding negative duty may be philosophically harder to define) is relevant to whether a criminal negligence direction is workable in a given case.
Legislation and Cases Referenced
Cases:
- R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316
- R v Taktak (1988) 14 NSWLR 226
- R v Evans (Gemma) [2009] 1 WLR 1999; [2009] EWCA Crim 650
- Caltex Refineries (QLD) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
- Burns v The Queen (referenced throughout, discussed in the context of duty of care in criminal negligence manslaughter)
Legislation: No specific legislation was cited in the provided text.