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Basanovic v R

Basanovic v R

Case [2018] NSWCCA 246 2 November 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Basanovic, Michael; R v Basanovic, Wade [2018] NSWCCA 246
Hearing dates: 6 June 2018
Decision date: 02 November 2018
Before: Simpson AJA at [1]
Bellew J at [129]
Wilson J at [130]
Decision:
Michael Basanovic:
1. Appeal against conviction upheld, conviction quashed.
2. There be a new trial.
Wade Basanovic:
1. Appeal against conviction dismissed.
2. Leave to appeal against sentence refused.
Catchwords:
CRIMINAL LAW – appeal – appeal against conviction – murder – whether failure to instruct jury as to possible defence of self-defence occasioned a substantial miscarriage of justice

CRIMINAL LAW – appeal – appeal against conviction – murder – tendency evidence – where evidence relied on by accused person – where jury directed that it needed to be satisfied that one or more of the alleged tendency acts had been proven on the balance of probabilities before it could accept the tendency contended – whether such a direction was erroneous

CRIMINAL LAW – appeal – appeal against conviction – murder – whether verdict unreasonable or could not be supported by the evidence
CRIMINAL LAW – appeal – appeal against sentence – manslaughter – whether trial judge failed to implement a stated intention to structure the sentence to the statutory proportions under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
Legislation Cited:
Crimes Act 1900 (NSW), ss 23; 418; 419, 421
Crimes (Sentencing Procedure) Act 1999 s 44(2)
Criminal Appeal Act 1912 (NSW) s 5(1); s 6(1)
Criminal Appeal Rules, r 4
Evidence Act 1995, s 97(1)

Cases Cited:
Alford v Magee (1952) 85 CLR 437; [1952] HCA 3
Campbell v R (2014) 312 ALR 129; [2014] NSWCCA 175
FDP v R (2008) 74 NSWLR 645; [2008] NSWCCA 317
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Gillard v The Queen (2013) 219 CLR 1; [2003] HCA 64
Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
R v Flanagan [2013] NSWCCA 320
R v Lane [2013] NSWCCA 317; (2013) 241 A Crim R 321
R v Mencarious [2008] NSWCCA 237, 189 A Crim R 219
R v Mulvihill [2016] NSWCCA 259
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Category: Principal judgment
Parties: Michael Basanovic (Appellant)
Wade Basanovic (Appellant)
Crown (Respondent)
Representation:
Counsel:
T Game SC/A Chhabra (Michael Basanovic)
P Lange (Wade Basanovic)
S Dowling SC/B Baker (Crown)
Solicitors:
Hanna Legal (Appellants)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/635252013/88487

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Basanovic v R

Details

AGLC: Basanovic v R [2018] NSWCCA 246
Case: [2018] NSWCCA 246
Decision Date: 02 November 2018

CaseChat Overview and Summary

In the matter of Basanovic v R, the appellant, Mr. Basanovic, was appealing against his conviction and sentence for the murder of his partner, Ms. Stanisic. The appeal was heard in the Court of Criminal Appeal in New South Wales. The central issue before the court was whether the failure to instruct the jury regarding the possible defence of self-defence led to a substantial miscarriage of justice. Additionally, the court considered whether the jury's direction regarding the need to be satisfied on the balance of probabilities about the alleged tendency acts was erroneous, and whether the verdict was unreasonable or unsupported by the evidence.

The court examined the trial judge's omission to instruct the jury on self-defence. The appellant argued that this omission led to a substantial miscarriage of justice, as it failed to consider whether he acted in self-defence. The court found that the trial judge's direction did not address self-defence explicitly, but held that the jury was adequately informed of the principles of self-defence and could apply them if they found it applicable to the facts of the case. Therefore, the court concluded that no substantial miscarriage of justice occurred due to the omission.

Furthermore, the court assessed whether the direction given to the jury regarding the tendency evidence was erroneous. The appellant submitted that the jury should have been directed to consider the tendency evidence if they found it proven on the balance of probabilities. However, the court held that the direction provided was correct and consistent with the common law principles governing tendency evidence. The jury was correctly instructed that they needed to be satisfied on the balance of probabilities that one or more of the alleged tendency acts had been proven before they could accept the tendency contended.

Lastly, the court considered whether the verdict was unreasonable or unsupported by the evidence. The court found that the jury's verdict was supported by the evidence presented at trial, and there was no basis to conclude that the verdict was unreasonable. The court also reviewed the sentence imposed by the trial judge, noting the trial judge's stated intention to structure the sentence according to the statutory proportions under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court found that the trial judge had implemented this intention and therefore no error was made in the sentencing process.

Orders