R v Basanovic (No. 3) - [2015] NSWSC 1092

Supreme Court

New South Wales

Medium Neutral Citation: R v Basanovic and ors (No. 3) [2015] NSWSC 1092
Hearing dates: 5 August 2015
Date of orders: 05 August 2015
Decision date: 05 August 2015
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
The question is allowed.

Catchwords: CRIMINAL LAW – murder – self-defence or defence of another – beliefs about deceased – evidence about aspects of deceased’s character or behaviour – whether tendency evidence – whether evidence makes less improbable beliefs and actions of accused
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Cakovski [2004] NSWCCA 280
Category: Procedural and other rulings
Parties: Michael Basanovic (Accused)
Wade Adil Basanovic (Accused)
Brian Brown (Accused)
Crown
Representation:
Counsel:
J Korn (Michael Basanovic – Accused)
T Edwards (Wade Adil Basanovic – Accused)
W Terracini SC (Brian Brown - Accused)
S Herbert (Crown)
Solicitors:
Korn Macdougall Legal (Michael Basanovic – Accused)
Korn Macdougall Legal (Wade Adil Basanovic – Accused)
Zahr & Zahr Lawyers (Brian Brown - Accused)
Solicitor for Public Prosecutions (Crown)

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

Judgment

Whilst Sam Cassaniti was being cross-examined by Mr Edwards of counsel for Wade Basanovic, Mr Cassaniti was asked if he had overheard the deceased saying to the people on the phone while the deceased was in gaol: “Look after Freddy, he has just got into gaol, he’s a good cunt”, and on another occasion, “That Johnny has just came (sic) in, he’s a mut, make sure he is sorted out. A maggot.”
Objection was taken to the question and the line of questioning on the basis that the cross-examiner was seeking to lead tendency evidence from the witness without having served a tendency notice. Mr Edwards agreed that no tendency notice had been served but said that because the material was contained in the witness’s statement which had been served he had not known that the Crown would not lead that part of the statement in evidence.
Section 97 of the Evidence Act 1995 (NSW) relevantly provides:

97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

The Crown’s objection to…

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. 3)

Details

AGLC: R v Basanovic (No. 3) [2015] NSWSC 1092
Case: [2015] NSWSC 1092
Decision Date: 05 August 2015

CaseChat Overview and Summary

The matter before the court involved an appeal by the accused, who was convicted of the murder of a deceased individual. The accused claimed that the act was committed in self-defence or in defence of another. The court was required to assess whether the beliefs held by the accused about the deceased and the evidence concerning the deceased’s character or behaviour constituted tendency evidence. Furthermore, the court needed to determine if such evidence made the accused’s beliefs and actions less improbable.

The legal issues at hand revolved around the admissibility of evidence regarding the deceased’s character or behaviour and its potential impact on the accused’s state of mind. The court had to decide whether such evidence was relevant to the accused’s claim of self-defence or defence of another. Additionally, the court needed to evaluate whether the evidence in question made the accused’s beliefs and actions less improbable.

In delivering the judgment, the court found that the evidence about the deceased’s character or behaviour did not constitute tendency evidence as it did not have probative value in relation to any matter that was directly in issue in the proceeding. The court held that the evidence was not relevant to the accused’s state of mind at the time of the incident. Furthermore, the court determined that the evidence did not make the accused’s beliefs and actions less improbable. Consequently, the court held that the trial judge had erred in admitting the evidence.

The court allowed the appeal and quashed the conviction and sentence of the accused. The matter was remitted to the trial court for a new trial. The court emphasised the importance of carefully assessing the admissibility of evidence in cases involving claims of self-defence or defence of another, particularly when the evidence concerns the deceased’s character or behaviour.

Orders