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 unavailableLegislation 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 228Category: Procedural and other rulings Parties: Michael Basanovic (Accused)
Wade Adil Basanovic (Accused)
Brian Brown (Accused)
CrownRepresentation: Counsel:
Solicitors:
J Korn (Michael Basanovic – Accused)
T Edwards (Wade Adil Basanovic – Accused)
W Terracini SC (Brian Brown - Accused)
S Herbert (Crown)
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
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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.
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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.
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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…
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- AGLC
- R v Basanovic (No. 4) [2015] NSWSC 1100
- Case
- [2015] NSWSC 1100
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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