Citation: R v Basanovic and ors (No. 3) [2015] NSWSC 1092
Court: Supreme Court of New South Wales
Date: 5 August 2015
Judge: Davies J
Background
This decision arose during a murder trial in which one of the accused, Wade Basanovic, was charged with murder. His defence was self-defence or defence of another, and his case turned in part on his beliefs about the deceased at the time of the shooting.
During cross-examination of a Crown witness, counsel for Basanovic sought to elicit evidence that the witness had overheard the deceased, while in gaol, making phone calls in which he directed associates to "look after" or "sort out" particular individuals depending on whether they were regarded favourably or unfavourably. The Crown objected on the basis that no tendency notice had been served under the Evidence Act 1995 (NSW).
The question before Davies J was whether the proposed evidence was admissible, either as tendency evidence (potentially requiring a notice) or on another recognised basis, and whether the procedural requirement for a notice should be dispensed with in any event.
Legal Issues
- Whether the evidence of the deceased's conduct constituted tendency evidence under s 97 of the Evidence Act 1995 (NSW), requiring reasonable written notice to the other parties before it could be adduced
- Whether, even if characterised as tendency evidence, the notice requirement could be dispensed with under s 100(1) of the Act
- Whether the evidence was alternatively admissible on the basis that it rendered less improbable the accused's claimed beliefs about the deceased, without relying on tendency reasoning
Decision
Davies J held that the proposed evidence more readily attracted the character of tendency evidence than the evidence at issue in R v Cakovski [2004] NSWCCA 280. The evidence showed the deceased directing others to deal with people either positively or negatively, which the court regarded as a propensity to act in a particular way. That characterisation brought it squarely within s 97 of the Evidence Act.
However, following Cakovski, the court also accepted a second, independent basis for admissibility. Evidence of this kind can be relevant not merely to prove a tendency, but to render less improbable the beliefs and actions attributed to the accused. Where an accused relies on self-defence and claims to have held particular beliefs about the deceased, evidence about the deceased's character or conduct can have probative value by making those claimed beliefs more credible, without being limited to tendency reasoning.
On the procedural question, Davies J exercised the power under s 100(1) to dispense with the requirement for a tendency notice. Three factors supported that course: the evidence was drawn from a Crown witness statement that had already been served on the parties; questions directed to the same subject matter had already been put in cross-examination without Crown objection; and counsel for Basanovic had identified the specific tendency he relied upon. The court was satisfied the Crown suffered no prejudice from admission of the evidence.
Orders Made
No formal orders were recorded in this decision. The court ruled the question was allowed, permitting the cross-examination to proceed.
Key Takeaways
- Evidence about the deceased's character or conduct in a murder trial can be relevant on two distinct bases: as tendency evidence under s 97, and as evidence that renders less improbable the accused's claimed beliefs about the deceased at the time of the alleged offending.
- Where evidence clearly demonstrates a propensity to act in a particular way, it is more readily characterised as tendency evidence than evidence of the kind considered in Cakovski (which involved prior killings). That characterisation engages the notice requirements in s 97.
- Under s 100(1) of the Evidence Act, a court retains a discretion to dispense with the tendency notice requirement. Relevant considerations include whether the underlying material was already disclosed to all parties, whether related questioning had occurred without objection, and whether the opposing party would suffer actual prejudice.
- R v Cakovski confirms that evidence about a deceased's prior conduct can have significant probative value in self-defence cases by making an accused's account of events less inherently improbable, even where that evidence was not known to the accused at the time.
- The admissibility of evidence on the "renders less improbable" basis does not depend on satisfying the full tendency evidence framework, though the two forms of relevance may overlap.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 97, 100
Cases:
- R v Cakovski [2004] NSWCCA 280