Citation: R v Basanovic and ors (No. 2) [2015] NSWSC 1085
Court: Supreme Court of New South Wales
Date: 5 August 2015
Judge: Davies J
Background
Three accused were on trial for the murder of a man at his business premises on 15 January 2013. The Crown alleged a joint criminal enterprise to kill or cause grievous bodily harm to the deceased. The prosecution case included evidence that a disputed debt, allegedly owed by the deceased to one of the co-accused, provided the background context for the accused attending the premises that day.
The night before the shooting, the deceased's wife overheard her husband in a heated telephone conversation with a third party concerning the debt. She gave evidence of words spoken by her husband during and after that call. The deceased's accountant was also called to give evidence about the debt itself.
Counsel for the accused objected to this evidence on two grounds: first, that the deceased's statements were inadmissible hearsay; and second, that the evidence about the debt lacked sufficient relevance because the Crown had not clearly articulated the relationship between the debt and the alleged joint criminal enterprise.
Legal Issues
- Whether the deceased's out-of-court statements, made the night before his death, were admissible despite being hearsay
- Whether evidence of the disputed debt was relevant to the Crown's case of joint criminal enterprise
- Whether the Crown's opening adequately disclosed the relationship between the debt and the alleged criminal enterprise, such that the accused were not prejudiced in their cross-examination
Decision
On the hearsay question, Davies J held that the deceased's statements were admissible under section 65(2) of the Evidence Act 1995 (NSW). The deceased was unavailable to give evidence, the representations were made shortly after the events they described, and the circumstances made it unlikely they were fabricated or otherwise unreliable.
On relevance, the court found the evidence of the debt clearly admissible as background evidence explaining why the accused attended the deceased's premises. Davies J noted several possible inferences: the debt may have been used as a ruse to confirm the deceased's whereabouts, or it may have been a legitimate enquiry that was later overtaken by a different purpose. Either way, sufficient basis existed for the jury to treat the debt as at least one explanation for the attendance of the accused at the premises.
The court rejected the argument that the Crown was obliged to specify the precise relationship between the debt and the formation of the joint criminal enterprise. Davies J observed that the objections were conflating motive with the enterprise itself. Just as motive is not an element of murder, it is not an essential feature of a joint criminal enterprise, and the absence of an identified motive does not render background evidence inadmissible.
Davies J also found no unfairness in the Crown's opening, particularly in light of the clarifications provided during argument. The evidence of both the deceased's wife and the accountant was ruled admissible.
Orders Made
No formal orders were made in this decision, which resolved interlocutory evidentiary objections during the course of the trial.
Key Takeaways
- Under section 65(2) of the Evidence Act 1995 (NSW), a representation made by a person who is unavailable to give evidence may be admitted despite the hearsay rule where it was made shortly after the relevant events and in circumstances making fabrication unlikely or reliability highly probable.
- Background evidence explaining why accused persons attended a crime scene is capable of being relevant even where its precise connection to the alleged criminal enterprise has not been exhaustively mapped in the Crown's opening.
- Motive is not an element of a joint criminal enterprise, just as it is not an element of murder. A Crown is not obliged to establish a motive for the enterprise, though absence of identifiable motive may weaken inferences drawn from it.
- Arguments about fairness and prejudice in cross-examination were addressed by clarifications made by the Crown during argument, and the court found no unfairness arose from the opening as delivered.
- Evidence that is primarily relevant as background or contextual material remains admissible even where it does not directly prove the existence of the alleged enterprise, provided it supports a legitimate inference relevant to the Crown's case.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 65(2) (hearsay exception where maker of representation is unavailable)
Cases cited:
No cases were cited in the judgment.