R v Basanovic and ors (No. 3)

Whilst Sam Cassaniti was being cross-examined by Mr Edwards of counsel for Wade Basanovic, Mr Cassaniti was asked if he had overheard the deceased saying to the people on the phone while the deceased was in gaol: “Look after Freddy, he has just got into gaol, he’s a good cunt”, and on another occasion, “That Johnny has just came (sic) in, he’s a mut, make sure he is sorted out. A maggot.”

Objection was taken to the question and the line of questioning on the basis that the cross-examiner was seeking to lead tendency evidence from the witness without having served a tendency notice. Mr Edwards agreed that no tendency notice had been served but said that because the material was contained in the witness’s statement which had been served he had not known that the Crown would not lead that part of the statement in evidence.

Section 97 of the Evidence Act 1995 (NSW) relevantly provides:

The Crown’s objection to the absence of the tendency notice was not merely a technical objection. The Crown submitted that it did not know what the tendency was that was to be relied upon by Wade Basanovic. During the course of the argument Mr Edwards said that he could only justify the evidence (which was contained in paragraph 12 of the statement) as going to a tendency on the part of the deceased to have others sort people out rather than a tendency for the deceased to engage in violence himself in that regard.

In R v Cakovski [2004] NSWCCA 280 the appellant had pleaded not guilty to the murder of one Eugene Petroff. A jury found him of guilty of murder. He appealed on a number of grounds including a ground that the trial judge had erred in refusing to admit evidence that the deceased had murdered three people. The evidence had been rejected by the trial judge as not having significant probative value as s 97(1)(b) required. The trial judge’s ruling was later in the trial extended to other evidence that the deceased had said to another person that he was going to kill him as he had killed the other three people. The appellant in that case defended the charge on the basis of self-defence and provocation.

Hodgson JA said:

Hulme J agreed with Hodgson JA that the evidence was not admissible as tendency evidence principally because he said, at [58], that there was little evidence of the circumstances of the 1978 killings

Hidden J said:

The Crown drew attention to the fact that the judges in Cakovski were not of one mind when they admitted the evidence. That may be accepted. Both Hodgson JA and Hulme J did not regard the evidence as tendency evidence although Hidden J considered that it was.

Two matters are significant in relation to the circumstances in Cakovski when compared with the circumstances of the present case. First, the present case is stronger in this way. In Cakovski the appellant, at the time he killed the deceased, was unaware that the deceased had murdered three people. In the present case the evidence intended to be led is that Wade Basanovic was aware that, or believed that, the deceased could arrange for people to assault or otherwise deal with persons in a manner that the deceased wished.

Secondly, although Hodgson JA and Hulme J did not consider that the evidence about the prior killings was tendency evidence, that was based on the length of time since those killings had occurred and the lack of evidence of the circumstances that led to the killing. In other words, the mere fact that the deceased had killed other people did not of itself demonstrate a tendency. As Hulme J said:

In the present case the tendency relied upon was an ability to arrange for other persons to deal with people either positively or negatively according to what the deceased requested. That can more easily be characterised as a propensity or tendency to act in a particular way than, as in Cakovski, merely giving evidence that the deceased had killed three persons earlier could be characterised.

Cakovski, however, also supports the admissibility of the evidence on another basis. The evidence renders less improbable the evidence which it is said the accused Wade Basanovic will give of his beliefs about the deceased, which beliefs led to his shooting the deceased; Cakovski at [36] and [40].

The Court has power to dispense with a tendency notice pursuant to s 100(1). In the present case I consider that the requirement for the service of the notice should be dispensed with. The evidence sought to be relied upon for the tendency was contained in the statement served by the Crown. Further, the witness had already been asked questions in cross-examination directed to the same matter and no objection was made by the Crown. Counsel for Wade Basanovic has identified the basis of the tendency relied upon. I do not consider that the Crown is prejudiced by the admission of this evidence.

The question is allowed.