Citation: R v Basanovic and ors (No. 1) [2015] NSWSC 1033
Court: Supreme Court of New South Wales
Date: 28 July 2015
Judge: Davies J
Background
Three accused, Michael Basanovic, Wade Basanovic, and Brian Brown, were jointly charged with the murder of Zeljko Mitrovic and causing grievous bodily harm to Michael Bell with intent. Both offences were alleged to have occurred on 15 January 2013 at a transport business in Wetherill Park. The Crown's case was that all three men arrived at the premises together shortly after Wade Basanovic telephoned his father, entered the deceased's office, and that during the ensuing argument Wade Basanovic produced a concealed pistol and fired five shots, killing Mitrovic and injuring Bell.
The Crown relied on a joint criminal enterprise against all three accused. The applicant, Brian Brown, did not fire the weapon, and the key question was whether he had the requisite knowledge that a weapon might be used. Following the shooting, both Brown and Wade Basanovic purchased one-way tickets to Colombia, which has no extradition treaty with Australia. Brown later attended the Australian High Commission in Kuala Lumpur, declared he was "wanted" in Australia, and was returned to Sydney and arrested in April 2013.
On the first day of trial, Brown applied for his trial to be severed from that of his co-accused. He argued that the Crown case against him was considerably weaker and that a joint trial would expose him to unfair prejudice.
Legal Issues
- Whether Brown had discharged the onus of demonstrating that a separate trial should be ordered under s 21 of the Criminal Procedure Act 1986 (NSW)
- Whether the evidence to be led against the co-accused was highly prejudicial to Brown but inadmissible against him
- Whether the Crown case against Brown was so much weaker than that against the co-accused that a joint trial would cause positive injustice
- Whether speculative evidence that a co-accused might give in the witness box, potentially implicating Brown, constituted a basis for severance
Decision
Davies J refused the application. The court confirmed the well-established principle that persons jointly charged with an offence should ordinarily be tried together, and that the applicant bears the onus of demonstrating that positive injustice would result from a joint trial. The relevant three-part test, drawn from R v Middis and approved by the Court of Criminal Appeal in R v Baartman, R v Fernando, and R v Pham, requires the applicant to show: a significantly weaker Crown case against the applicant; the existence of highly prejudicial evidence admissible against a co-accused but not against the applicant; and a real risk that the weaker case will be made substantially stronger by that material.
Brown's application failed at the second element. He could not identify any evidence in the Crown brief that was inadmissible against him but admissible against his co-accused. The only prejudicial evidence he pointed to was evidence that a co-accused might give if they entered the witness box, whether in chief or under cross-examination, potentially implicating him.
Davies J held that such evidence was speculative on two grounds. First, it was not certain that any co-accused would give evidence at all. Second, and more fundamentally, if a co-accused did give evidence implicating Brown, that evidence would not be inadmissible against Brown. The concern underpinning severance applications is the risk that evidence inadmissible against the applicant might nonetheless unfairly taint the jury's assessment of his case. Evidence given by a co-accused that directly implicates the applicant does not fall into that category.
The court also noted that this was a routine joint criminal enterprise case in which only one participant used the weapon, a factual pattern commonly encountered, with the central issue being the co-accused's foresight of death or serious injury. It was not a case involving damaging admissions by a co-accused of the kind that had justified severance in other decisions.
Orders Made
The application for a separate trial was refused.
Key Takeaways
- The Supreme Court confirmed that the onus rests on the applicant to demonstrate that a joint trial would cause positive injustice, not merely that the Crown case against them is weaker than that against co-accused.
- A separate trial will ordinarily be ordered only where the applicant identifies evidence that is both highly prejudicial to the applicant and inadmissible against the applicant, yet admissible against a co-accused in the joint trial.
- Speculative evidence, such as the possibility that a co-accused might give oral evidence implicating the applicant, does not satisfy the inadmissible-evidence requirement because, if actually given, such testimony would be admissible against the applicant.
- Refusing the severance application, the court distinguished cases where co-accused had made damaging pre-trial admissions or confessions from routine joint enterprise cases where foreseeability of violence is the central contested issue.
- Under the three-part Middis test, failure to identify any inadmissible prejudicial evidence in the Crown brief is fatal to a severance application, regardless of whether the overall Crown case against the applicant is comparatively weaker.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 21
Cases
- Webb & Hay v The Queen (1994) 181 CLR 41
- Regina v Patsalis & Spathis (No 1) [1999] NSWSC 649; (1997) 107 A Crim R 432
- R v Symss [2003] NSWCCA 77
- R v Middis (unreported, Hunt J, 27 March 1991)
- R v Baartman (unreported, Court of Criminal Appeal, 6 October 1994)
- R v Fernando [1999] NSWCCA 66
- R v Pham [2004] NSWCCA 190
- R v Iskandar [2011] NSWSC 1192
- R v Spicer [2013] NSWSC 1907
- Henry Ugo Madubuko v R [2011] NSWCCA 135; (2011) A Crim R 249