R v Basanovic (No. 4) - [2015] NSWSC 1100

Supreme Court

New South Wales

Medium Neutral Citation: R v Basanovic and ors (No. 4) [2015] NSWSC 1100
Hearing dates: 13 August 2015
Date of orders: 13 August 2015
Decision date: 13 August 2015
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
The tender of the transcript of the examination of Andre James from the New South Wales Crime Commission is rejected.

Catchwords: CRIMINAL LAW – evidence – hearsay evidence – witness examined by Crime Commission – witness overseas at trial – whether witness unavailable – whether reasonable steps taken to secure his attendance – steps first taken three days before trial due to commence – no explanation for delay – witness in Australia in weeks leading up to trial – whether probative value of evidence outweighed by unfair prejudice – tender of evidence rejected
EVIDENCE – hearsay evidence – no notice given to rely on hearsay evidence – whether witness unavailable
Legislation Cited: Crime Commission Act 2012 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Quintano v B W Rose Pty Ltd [2008] NSWSC 1012; (2008) 186 A Crim R 448.
R v BD (1997) 94 A Crim R 131
R v Papakosmos [1999] HCA 37; (1999) 196 CLR 297
R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101
Regina v Kazzi; Regina v Williams; Regina v Murchie [2003] NSWCCA 241; (2003) 140 A Crim R 545
Regina v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
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

The Crown sought to have admitted into evidence extracts from the transcript of an interview of Andre James at the New South Wales Crime Commission in about March 2013. After hearing argument, I indicated that I would reject the tender of the evidence and give reasons later. These are my reasons.
The evidence from Detective Senior Constable Luke McAneny was that Mr James is at an unspecified address in the Las Vegas area in the USA and had said that he was not prepared to return to Australia to give evidence. On that basis the Crown relied on s 65(2)(a), (c) and (d) of the Evidence Act 1995 (NSW). The admission of the evidence was opposed by all of the accused.
There were two substantive aspects to the evidence. The first concerned the purchase by Mr James of a black Mitsubishi Triton formerly owned by Michael Basanovic. The second matter concerned what Mr James had been told by Michael Basanovic about what happened at the shooting…

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. 4)

Details

AGLC: R v Basanovic (No. 4) [2015] NSWSC 1100
Case: [2015] NSWSC 1100
Decision Date: 13 August 2015

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia, involving a case of criminal law. The appellant, Basanovic, was convicted of conspiracy to import a commercial quantity of a controlled drug. The primary issue before the court was the admissibility of hearsay evidence given by a witness who had been examined by the Crime Commission. The witness was not available to give evidence at the trial as they were overseas. The appellant argued that reasonable steps were not taken to secure the witness's attendance. The court was required to determine whether the witness was indeed unavailable and whether the probative value of the evidence outweighed the unfair prejudice to the appellant.

The court considered the timing of the steps taken to secure the witness's attendance. It was noted that the steps were first taken three days before the trial was due to commence. There was no explanation provided for the delay. Additionally, the witness had been in Australia in the weeks leading up to the trial, which further complicated the issue of unavailability. The court held that the steps were not reasonable as they were taken too late. The court also found that the probative value of the evidence was outweighed by the unfair prejudice to the appellant. Consequently, the tender of the evidence was rejected.

In reaching its decision, the court emphasised the importance of timely action in securing the attendance of witnesses. It also highlighted the need for a balance between the probative value of hearsay evidence and the potential for unfair prejudice. The court ultimately concluded that the evidence was inadmissible and should not have been considered in the trial. The conviction was quashed, and a new trial was ordered.

Orders