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Supreme Court 25 August 2015

R v Basanovic and ors (No. 5)

[2015] NSWSC 1197

Assault & violenceHomicide
CRIMINAL LAW MURDER CAUSE GRIEVOUS BODILY HARM WITH INTENT JOINT CRIMINAL ENTERPRISE

Citation: R v Basanovic and ors (No. 5) [2015] NSWSC 1197
Court: Supreme Court of New South Wales
Date: 25 August 2015
Judge: Davies J

Background

Three accused faced charges of murder and causing grievous bodily harm with intent, arising from a shooting at commercial premises. The Crown's case was that all three participated in a joint criminal enterprise to kill or inflict grievous bodily harm on the deceased. The principal shooter was one of the accused (Wade Basanovic), and his father (Michael Basanovic) was alleged to have directed the shooting by nodding to his son immediately before it occurred.

The third accused (Brian Brown) was alleged to have been part of the same criminal enterprise. The Crown pointed to his presence at a service station before the shooting, his attendance at the premises during the confrontation, his departure from Australia the following day on a one-way ticket, and meetings held at his home in the days prior.

At the close of the Crown case and the cases for the co-accused, counsel for both Brown and Michael Basanovic made no-case applications, seeking directed verdicts of acquittal. Davies J granted Brown's application but refused Michael Basanovic's. These are the reasons for those rulings.

  • Whether, on the evidence taken at its highest, the jury could lawfully convict Brian Brown of murder or causing grievous bodily harm with intent as a participant in a joint criminal enterprise.
  • Whether, applying the same standard, sufficient evidence existed to leave Michael Basanovic's case to the jury.
  • What the correct legal threshold is for directing a verdict of acquittal following a no-case submission in a criminal trial.

Decision

Davies J confirmed the well-settled principles governing no-case applications, drawing on the High Court's statement in Doney v The Queen. A directed verdict of acquittal is appropriate only where the evidence, taken at its highest, contains a defect such that it cannot sustain a guilty verdict. Where evidence exists that is capable of supporting a conviction, even if tenuous, vague, or weak, the matter must go to the jury.

Applying that standard to Brian Brown, Davies J found the evidence fell short. While the Crown established that Brown attended the deceased's premises with the other two accused, and that he had attended meetings at his home beforehand, there was no evidence from which a jury could infer that Brown knew Wade Basanovic was carrying a gun, or that any plan to kill or seriously harm the deceased existed before they arrived. Brown's departure from Australia on a one-way ticket the following day did not, without more, permit an inference of prior knowledge of the enterprise's violent purpose. The Crown's own characterisation of certain evidence as "neutral" regarding Brown's pre-shooting knowledge was significant.

The judge found that the strongest circumstantial evidence of a joint criminal enterprise, particularly the nod from father to son just before the shooting, supported inferences of an arrangement between Wade and Michael Basanovic but did not extend to Brown. Any conclusion that Brown was party to a plan to kill or cause grievous bodily harm would have amounted to nothing more than speculation.

By contrast, Michael Basanovic's no-case application was refused. Evidence of the prior history between Michael Basanovic and the deceased, his knowledge of threats on his own life, his prior gun-carrying, Wade's knowledge of that gun, Wade's actions in confirming the deceased had no support before summoning his father, and the nod immediately preceding the shooting together provided sufficient material from which a jury could find the requisite joint enterprise.

Orders Made

  • The jury was directed to find Brian Brown not guilty on the count of murder.
  • The jury was directed to find Brian Brown not guilty on the count of causing grievous bodily harm with intent to cause grievous bodily harm.
  • Michael Basanovic's no-case application was refused, and his case was left to the jury.

Key Takeaways

  • A directed verdict of acquittal is warranted only where the evidence, taken at its highest, is incapable of sustaining a conviction. The bar is not whether the evidence is weak or vague, but whether it contains a fundamental defect.
  • Presence at the scene of a joint criminal enterprise, attendance at prior meetings, and flight from the jurisdiction are not sufficient, without more, to establish that an accused was party to an agreement to kill or cause grievous bodily harm.
  • Where both alleged co-participants give evidence that the accused did not know a gun was present, and the Crown accepts that other circumstantial evidence is neutral on the question of prior knowledge, the evidentiary foundation for a joint enterprise charge may be fatally undermined.
  • Circumstantial evidence capable of supporting an inference of a joint enterprise between two accused does not automatically extend that enterprise to a third accused who was present. Each accused's position must be assessed individually against the evidence.
  • The Supreme Court reaffirmed that the trial judge's role on a no-case application is distinct from the jury's fact-finding function. The judge assesses legal sufficiency; weight and credibility remain for the jury.

Legislation and Cases Referenced

Cases:
- Doney v The Queen (1990) 171 CLR 207
- May v O'Sullivan (1955) 92 CLR 654
- Regina v PL [2012] NSWCCA 31
- Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 (cited within Doney)
- Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 (cited within Doney)
- Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 (cited within Doney)

Legislation: No specific legislation was cited in the provided text.