R v Basanovic (No. 1) - [2015] NSWSC 1033

Supreme Court

New South Wales

Medium Neutral Citation: R v Basanovic and ors (No. 1) [2015] NSWSC 1033
Hearing dates: 28 July 2015
Date of orders: 28 July 2015
Decision date: 28 July 2015
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
Application for a separate trial refused.

Catchwords: CRIMINAL LAW – murder - causing grievous bodily harm with intent - application for a separate trial by one of three accused – joint criminal enterprise – co-accused kills and injures with pistol secreted in clothing – whether Crown can prove requisite knowledge of applicant - whether prejudicial evidence to be led against applicant – whether evidence inadmissible against applicant – no inadmissible evidence identified in Crown brief – speculation that co-accused will give evidence implicating applicant – whether such evidence inadmissible – application refused
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Cases Cited: Henry Ugo Madubuko v R [2011] NSWCCA 135; (2011) A Crim R 249
R v Baartman (unreported - Court of Criminal Appeal - 6 October 1994)
R v Fernando [1999] NSWCCA 66
R v Iskandar [2011] NSWSC 1192
R v Middis (unreported - Hunt J - 27 March 1991)
R v Pham [2004] NSWCCA 190
R v Spicer [2013] NSWSC 1907
R v Symss [2003] NSWCCA 77
Regina v Patsalis & Spathis (No 1) [1999] NSWSC 649; (1997) 107 A Crim R 432
Webb & Hay v the Queen (1994) 181 CLR 41
Category: Procedural and other rulings
Parties: Brian Brown (Accused/Applicant)
Michael Basanovic (Accused)
Wade Adil Basanovic (Accused)
Crown
Representation:
Counsel:
W Terracini SC (Brian Brown - Accused/Applicant)
J Korn (Michael Basanovic – Accused)
T Edwards (Wade Adil Basanovic – Accused)
S Herbert (Crown)
Solicitors:
Zahr & Zahr Lawyers (Brian Brown - Accused/Applicant)
Korn Macdougall Legal (Michael Basanovic – Accused)
Korn Macdougall Legal (Wade Adil Basanovic – Accused)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/63525; 2013/88487 & 2013/88507

Judgment

Each of the Accused Michael Basanovic, Wade Basanovic and Brian Brown has been indicted on 2 counts. The first is that each did murder Zeljko Mitrovic and the second is that each caused grievous bodily harm to Michael Bell with intent to cause grievous bodily harm. Both offences are alleged to have taken place on 15 January 2013.
On the first day fixed for the trial the accused Brian Brown (the Applicant) applied for a trial on each count alleged against him separate from the trial of the co-accused Michael and Wade Basanovic. After hearing argument I ruled that the application was refused. These are my reasons for so doing.
The Crown case is that Wade Basanovic and a person named Frank Bacic went to the premises of Dynamic Transport at Wetherill Park. Dynamic Transport was the deceased’s company.
Mr Bacic went to the deceased’s office where they argued, apparently about money that was owed by the deceased. The deceased then went outside and argued with Wade Basanovic and two other unidentified men. Probably shortly after that argument Wade Basanovic made a telephone…

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 R v Basanovic (No. 1)

Details

AGLC: R v Basanovic (No. 1) [2015] NSWSC 1033
Case: [2015] NSWSC 1033
Decision Date: 28 July 2015

CaseChat Overview and Summary

In the case of R v Basanovic (No. 1), the appellant sought a separate trial from his co-accused for the charges of murder and causing grievous bodily harm with intent. The case was heard in the High Court of Australia, where the appellant challenged the decision of the Court of Appeal of the Supreme Court of Victoria. The appellant argued that the Crown would not be able to prove the requisite knowledge on his part, and that the evidence against him would be prejudicial and inadmissible. The Crown, on the other hand, argued that the appellant would be able to lead evidence to counter the prejudicial evidence and that no inadmissible evidence had been identified in the Crown brief.

The legal issues before the court were whether the Crown could prove the requisite knowledge of the appellant and whether the evidence to be led against him would be prejudicial and inadmissible. The court had to consider the implications of the joint criminal enterprise doctrine and the admissibility of evidence given by co-accused implicating the appellant. The court also had to determine whether the appellant's right to a fair trial would be prejudiced by being tried alongside his co-accused.

The court held that the appellant had not demonstrated that the Crown could not prove the requisite knowledge on his part. The court found that there was no evidence that the co-accused would give evidence implicating the appellant and that any such evidence would be admissible. The court also found that the appellant had not shown that he would be prejudiced by being tried alongside his co-accused. The court held that the appellant's right to a fair trial would not be prejudiced by being tried alongside his co-accused. The court dismissed the appeal and refused the application for a separate trial.

The court did not make any orders in relation to the application for a separate trial. The appellant was to be tried alongside his co-accused for the charges of murder and causing grievous bodily harm with intent.

Orders