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 1. 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. 2. 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. 3. 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. 4. 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 call to his father Michael Basanovic. Eleven seconds after that call was terminated a silver Ford Falcon sedan arrived at the premises at Dynamic Transport with four men inside. Two of those persons were Michael Basanovic and the Applicant Brian Brown. 5. Wade Basanovic, Michael Basanovic and the Applicant walked to the deceased's office where they argued with him. During the course of that argument Wade Basanovic looked at his father who appeared to nod. Wade Basanovic took a pistol out from inside his clothing and fired five shots directly at the deceased at short range. Three of those bullets struck the deceased and killed him. One of the bullets struck Michael Bell who was standing behind the deceased and to one side. He was shot in the right arm and suffered a fracture of the lower end of the right humerus as a result. The fifth bullet appears to have gone through the window of the premises. 6. Wade Basanovic, Michael Basanovic and the Applicant together with two unidentified men left the scene in the Ford Falcon. 7. At about 9:00am on the following morning Wade Basanovic and the Applicant each purchased a one way ticket to Colombia. Colombia apparently does not have an extradition treaty with Australia. 8. On 15 April 2013 the Applicant went to the Australian High Commission in Kuala Lumpur, Malaysia and informed officials that he was "wanted" in Australia. He said that he had no money and requested passage back to Sydney. The Department of Foreign Affairs and Trade paid for his ticket to return to Australia and on his arrival at Sydney airport on 16 April 2013 he was arrested. 9. The basis of the application for a separate trial is said to be that the case against the Applicant is considerably weaker than the case against the other co-accused. Both counts rely on joint criminal enterprise. There is no doubt that the gun was in the possession of Wade Basanovic and that he was the person who fired the shots that killed Mitrovic and seriously injured Bell. The Applicant says that the Crown's case against him relies chiefly on his being present with the co-accused at the time of the offences and of his subsequent flight from Australia to a country that does not have an extradition treaty with Australia. 10. The Applicant submitted that if either of the co-accused gives evidence in the matter, even if they do not implicate the Applicant as having any knowledge of the pistol or the intention of Wade Basanovic and his father to use it, the Crown will cross-examine them in an endeavour to have that knowledge attributed to the Applicant. Such evidence would be seriously prejudicial to the Applicant and would convert a case where the Applicant has a reasonable possibility of acquittal into a case where he is likely to be convicted. 11. Section 21 of the Criminal Procedure Act 1986 (NSW) relevantly provides: (1) … (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) …. (4) An order under this section may be made either before trial or at any stage during the trial. (5) … (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes. 1. The legal principles are well known. There are strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together: Webb & Hay v the Queen (1994) 181 CLR 41 at 88-89. The applicant for a separate trial bears the onus of showing that an order for a separate trial should be made: R v Spicer [2013] NSWSC 1907 at [5]. 2. In Regina v Patsalis & Spathis (No 1) [1999] NSWSC 649; (1997) 107 A Crim R 432 at [6] Kirby J said: There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered (R v Oliver (1984) 57 ALR 543). 1. In R v Symss [2003] NSWCCA 77 at [68] Sheller JA (with whom James J and Smart AJ agreed) said: The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts. 1. In R v Middis (unreported - Hunt J - 27 March 1991) Hunt J said: Briefly, the relevant principles are that: 1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and 2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and 3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial. (emphasis added) 1. This statement by Hunt J was approved in R v Baartman (unreported - Court of Criminal Appeal - 6 October 1994), in R v Fernando [1999] NSWCCA 66 at [416], and in R v Pham [2004] NSWCCA 190 at [48]. 2. In Pham, Adams J (with whom Spigelman CJ and Hulme J agreed) said in commenting on Hunt J's summary of the principles: [39] Two phrases in this summary need some explanation. In ordinary speech, "immeasurably" usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant "significant, though incommensurable". The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to "positive injustice". Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence. [40] I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case since, if the co-accused's case was weak, or weaker than the applicant's, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case. (emphasis added) 1. In Henry Ugo Madubuko v R [2011] NSWCCA 135; (2011) 210 A Crim R 249 Hodgson JA (with whom Hoeben J and Grove AJ agreed), expressly agreed with what Adams J said in Pham in those paragraphs. 2. The Applicant submitted that the first time a firearm is visible on any CCTV was when Wade Basanovic removed it from his clothing. There was no material within the brief of evidence to disclose that the Applicant was aware of the presence of the firearm until it was produced and discharged. The Applicant submitted that his reaction on the presentation of discharge of the firearm, as seen on the CCTV, is appropriately described as shock. That is inconsistent with there being a joint criminal enterprise to engage in any offending conduct where the death of a person was a possibility. The Applicant pointed to the fact that when he was first arrested he was simply charged with being an accessory after the fact to murder and an accessory after the fact to recklessly causing grievous bodily harm in company. 3. The Applicant does not submit that this is the prejudicial evidence, only that it tends to undermine the Crown's case of a joint criminal enterprise and highlights the weakness of the Crown's case overall. 4. The Applicant accepted that there is no other evidence in the Crown case which is highly prejudicial apart from any evidence that might be given by the co-accused. 5. What is usually referred to as the proviso to the general rule about joint trials, particularly in the case of joint criminal enterprise, identified in Middis, contains three aspects which are cumulative. The first is that the evidence against an applicant is significantly weaker than, and different to, that admissible against a co-accused. The second is that the evidence against the other accused contains material highly prejudicial to the applicant although not admissible against him. The third is that there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material. 6. Even if it is accepted that the Crown case against the Applicant is weaker than the case against the co-accused or that the requirement to show a weaker case for an applicant for a separate trial has been modified (see R v Pham at [38] to [40] and my discussion of the point in R v Iskandar [2011] NSWSC 1192 at [30] and [35] to [36]), the Applicant fails to identify evidence that will be led that is highly prejudicial to him although not admissible against him. The only evidence identified by the Applicant was evidence that might be given if either of the co-accused enter the witness box and implicate the Applicant whether in their evidence in chief or in cross-examination. 7. Two things should be said about the submission based on such evidence. First, it is speculative whether such evidence will be given. Secondly, it would not be evidence that is not admissible against the Applicant. No doubt evidence that the co-accused were implicating him would be prejudicial to him but that is not the test. The concern in relation to joint trials is that there will be inadmissible evidence against an applicant and that such evidence, although admissible against the co-accused, could unfairly prejudice him in his defence of the case. 8. The present is a perfectly ordinary case where joint criminal enterprise is alleged against three persons, only one of whom admittedly used a weapon that resulted in death and serious injury. It is frequently the case that such a weapon is either produced and/or used at the last minute by one of the participants in the group, and the issue is frequently whether the co-accused foresaw the possibility that death or serious injury might result from their enterprise. It is not, for example, a case where the co-accused have made damaging admissions which might prejudicially affect the Applicant – see R v Iskandar. 9. For these reasons, I am not of the opinion that the Applicant will be prejudiced or embarrassed in his defence by reason of being tried with the co-accused, nor I am of the opinion that there is any other reason that it is desirable that the Applicant be tried separately. 10. Accordingly, the application for a separate trial was refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2015