R v Basanovic and ors (No. 2) [2015] NSWSC 1085

Supreme Court New South Wales

Medium Neutral Citation: R v Basanovic and ors (No. 2) [2015] NSWSC 1085 Hearing dates: 4 & 5 August 2015 Date of orders: 05 August 2015 Decision date: 05 August 2015 Jurisdiction: Common Law - Criminal Before: Davies J Decision: The evidence of Mrs Mitrovic and the evidence of Mr Cassaniti are admissible. Catchwords: CRIMINAL LAW – joint criminal enterprise - evidence – relevance – background evidence – crown opening – whether evidence encompassed by crown opening – hearsay – statement by deceased Legislation Cited: Evidence Act 1995 (NSW) 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 1. The deceased's wife Suzana Mitrovic was in the witness box being asked questions about telephone conversations the deceased had the night before he was killed. The following evidence was given: Q. Were you able to hear anything that Steve said during the conversation with Sam Cassaniti? A. Yes. Q. What did you hear him say? A. Something to the effect of "Fucking Frank, he's ringing me. Did you or did you not give him his money". Q. When Steve was talking to Sam, how did he sound? A. Angry. Q. After the conversation with Sam Cassaniti did you then have a conversation with Steve? A. Yes. Q. What do you remember him saying? A. "Fucking junkie cunt". KORN: I object to this, if your Honour please. 1. As the transcript makes clear, objection was taken although the particular question had been answered. It was made clear, nevertheless, that the issue was a wider one which would involve the whole of the evidence of Sam Cassaniti who was the deceased's accountant. The wider issue was the relevance of a debt allegedly owed by the deceased to Frank Bacic. 2. Objection was also taken on the basis that the statement by the deceased was hearsay. However, the evidence is admissible notwithstanding it is hearsay by virtue of s 65(2) of the Evidence Act 1995 (NSW) because the representation was made by a person who is not available to give evidence and the representation was made shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication or was made in circumstances that make it highly probable that the representation is reliable. 3. The argument concerning the relevance of the evidence about the debt widened into a criticism that the Crown had not identified in opening the relationship between the disputed debt and the joint criminal enterprise alleged against the accused to kill and to cause grievous bodily harm. 4. It was apparent from the Crown's opening that the disputed debt was the background to explain why the accused attended at the deceased's premises on 15 January 2013. The Crown opened that on the night before the shooting Frank Bacic telephoned the deceased and mentioned the outstanding money. Mr Bacic asked the deceased if he would be at work the following day. 5. On the following day Mr Bacic arrived at the deceased's premises with Wade Basanovic and two other persons. Mr Bacic went upstairs alone and exchanged words with the deceased. He went downstairs and then went back up again and spoke again to the deceased. The deceased then went downstairs where he had a conversation with Wade Basanovic and others. That conversation became heated. When the deceased returned to go back up to his office Wade Basanovic made the phone call to his father who arrived shortly afterwards. 6. During the argument about the evidence which was objected to the Crown made it clear that the joint criminal enterprise was not to go to the deceased's premises in relation to the debt. The Crown said that the joint criminal enterprise was the agreement to kill but the debt provided the background and the explanation for the presence of the accused at the deceased's premises. The Crown said that the joint criminal enterprise came into play no later than when the phone call was made from Wade Basanovic to his father. It may have come into play at an earlier time, particularly because all of those involved and others were seen in the two vehicles that arrived at the deceased's premises at the petrol station a little earlier. 7. Mr Korn of counsel for Michael Basanovic argued that until the Crown made clear the relationship between the disputed debt and the joint criminal enterprise he was not in a position to know what needed to be cross examined about. In that way he said he was prejudiced. His submissions were largely supported by Mr Edwards of counsel for Wade Basanovic. 8. Mr Terracini of senior counsel for Brian Brown said that if the Crown's case was that the joint criminal enterprise came into existence shortly before the deceased was confronted then he would be objecting to any of the evidence about the disputed debt being admitted against Mr Brown because there was no evidence to suggest that Mr Brown was aware of the conversations about a debt owing to Mr Bacic, particularly when the Crown was not calling that witness. 9. The principal matter for me to determine at the present time is the admissibility of the evidence of Mrs Mitrovic regarding the conversation she had with her husband the night before he was killed and the admissibility of Mr Cassaniti's evidence concerning the debt owed to Mr Bacic. The objection is relevance. 10. Mrs Mitrovic has, in any event, given evidence which was not objected to that Frank had rung about the money said to be owed. The evidence is clearly relevant because it provides the background to explain why the accused were present at the deceased's premises on 15 January 2013. It is conceivable that the debt was being used as a ruse so that the accused and others could be assured that the deceased would be at his premises. It might, on the other hand, have been a legitimate enquiry by Mr Bacic but there may have been another purpose or the purpose for the accused going to the premises might have changed after the telephone conversation of the night before. At the present time there is sufficient, on the basis of the Crown's opening, for the jury to infer that at least one purpose for the attendance of Mr Bacic and the accused at the deceased's premises was the debt since Mr Bacic and the deceased had two conversations themselves after the various persons arrived at the deceased's premises. 11. The objections being made about the relationship between the disputed debt and the criminal enterprise are tending to confuse the motive that the accused might have had for being involved in a joint criminal enterprise with the formation of the enterprise itself. In the same way as motive is not an element of the offence of murder, neither is motive an essential feature to establish a joint criminal enterprise. The Crown is under no obligation to point to a motive for a joint criminal enterprise although an absence of a motive might weaken any inferences that are asked to be drawn from a joint criminal enterprise that does not rely on express arrangements. 12. I do not consider that there is any unfairness arising from the Crown's opening, particularly in the light of the clarification that was made during the course of argument yesterday and in what has been said by the Crown this morning. 13. The evidence of Mrs Mitrovic and the evidence of Mr Cassaniti are admissible.