AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 6 September 2024

Krivosic v R

[2024] NSWCCA 166

Homicide

Citation: Krivosic v R [2024] NSWCCA 166
Court: Court of Criminal Appeal, NSW
Date: 6 September 2024
Judge(s): Mitchelmore JA (principal judgment); Garling J and Wilson J (agreeing)

Background

The applicant was convicted of murder following a jury trial before Johnson J in December 2021. The Crown alleged that on 22 July 2018, the applicant attended a unit in Warwick Farm armed with a loaded pistol, wearing dark clothing and latex gloves, and deliberately shot the deceased in the back with the intention to kill or cause very serious physical harm. The applicant did not dispute that he fired the shot, but argued the discharge was involuntary: he claimed he startled when a companion placed a hand on his shoulder immediately after he entered the unit.

The trial before Johnson J was the applicant's second trial on the murder charge. A first trial before Harrison J in April 2021 ended when the jury could not reach a verdict. The applicant gave evidence in the first trial but not the second. Over objection, the Crown tendered the applicant's evidence from the first trial, and both parties ultimately relied on parts of it.

The Crown used the applicant's earlier evidence to establish admissions: that he had armed himself with a loaded pistol (safety off), deliberately concealed his face, avoided CCTV cameras, and aimed the pistol at the deceased upon entering the unit. The applicant relied on other parts of the same evidence to support his claim that the shooting was accidental, triggered by the startle from his companion.

  • Whether the trial judge erred by failing to give a complete or effective Liberato direction when summing up to the jury.
  • Specifically, whether the omission of the third limb of the refined Liberato direction (as restated in De Silva v The Queen) caused a miscarriage of justice in circumstances where both parties relied on portions of the same body of evidence from the applicant.

Decision

The Court granted leave to appeal but dismissed the appeal, finding no miscarriage of justice.

The Liberato direction is a standard jury instruction designed to prevent jurors from treating their role as a simple choice between competing accounts. Its purpose is to ensure the jury understands that its task is to determine whether the Crown has proved its case beyond reasonable doubt, not to decide which version of events it prefers. The direction has three recognised limbs, with the third limb addressing the position where a jury neither believes nor disbelieves the accused's account but is left with a reasonable doubt by it.

In this case, however, neither the Crown nor the applicant framed the trial as a contest between the applicant's account and the evidence of other witnesses. Both sides drew on the applicant's own prior evidence, and each asked the jury to accept different parts of it. In that context, the Court found that giving a direction consistent with the third limb would have been apt to confuse the jury rather than assist it. The applicant's own counsel conceded as much.

The trial judge's directions adequately conveyed the second limb of the Liberato direction: that the jury did not need to positively accept the applicant's evidence before it was required to acquit. The judge also gave multiple clear directions on the burden and standard of proof throughout the summing-up. The Court distinguished the decision in Haile v R [2022] NSWCCA 71, where a full Liberato direction had been absent and a genuine risk existed that the jury would conceive its task as choosing between competing accounts. No such risk was present here.

Orders Made

  • Leave granted to extend the time for filing the notice seeking leave to appeal to 6 February 2024.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the purpose of a Liberato direction is to prevent a jury from conceiving its task as a choice between competing versions of events, and to reinforce that the Crown must prove its case beyond reasonable doubt.
  • A full Liberato direction is not always required in a rigid or uniform form; its necessity and appropriate content depend on the particular circumstances of the trial, including how the parties put their respective cases to the jury.
  • Where both the Crown and the defence rely on different portions of the same body of evidence from the accused, the conventional structure of the Liberato direction may not map onto the case, and giving the full direction could confuse rather than assist the jury.
  • No miscarriage of justice arose from the omission of the third limb of the Liberato direction where the trial judge's existing directions adequately communicated the onus of proof and the principle that positive acceptance of the accused's evidence was not required before an acquittal was warranted.
  • Haile v R [2022] NSWCCA 71 was distinguished on the basis that, unlike in Haile, there was no real risk in this case that the jury would view its role as one of choosing between the applicant's account and that of other witnesses.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Evidence Act 1995 (NSW), ss 38, 90
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71
- Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16
- Harper v R [2022] NSWCCA 211
- Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44
- Hewitt v R [2021] NSWCCA 227
- Johnson v Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531
- R v Anderson [2001] NSWCCA 488; (2000) 127 A Crim R 116
- R v Krivosic (No 5) [2021] NSWSC 1566