R v Basanovic and ors (No. 5)

1. [1]

   At the conclusion of the case for the Crown and the cases for Michael Basanovic and Wade Basanovic Senior Counsel for Brian Brown applied for an acquittal by direction on the basis that there was no case to answer against his client. At the same time Mr Korn of counsel for Michael Basanovic made a similar application in respect of his client. It should be noted, however, that Michael Basanovic had himself given evidence and had called other evidence in his case and closed his case at the time his application was made.

2. [2]

   On 25 August 2015 I indicated that I would accede to the application made on behalf of Brian Brown but would refuse the application by Michael Basanovic. On that day I directed that the jury should find Mr Brown not guilty on both Counts charged, that is, murder and cause grievous bodily harm with intent to cause grievous bodily harm. I said I would provide reasons later. These are those reasons.

3. [3]

   The principles on which a trial judge should direct a verdict of acquittal are well settled. The question is whether at the time a no case to answer submission is made the accused could lawfully be convicted on the evidence as it stood at that time: May v O’Sullivan (1955) 92 CLR 654 at 658; Regina v PL [2012] NSWCCA 31 at [31].

4. [4]

   In Doney v The Queen (1990) 171 CLR 207 the High Court said at 212 and 214:

Application of Brian Brown

1. [5]

   In her opening the Crown said this relevantly to Brian Brown:

2. [6]

   The evidence relied upon in the Crown case to show that Brian Brown was part of the joint criminal enterprise can be summarised as follows:

3. [7]

   The Crown also sought to rely on evidence given by Michael Basanovic and Wade Basanovic as follows:

4. [8]

   There was evidence from Wade Basanovic that neither Michael Basanovic nor Brian Brown knew that he, Wade, had the gun in his pocket when they went up to speak to Steve Mitrovic. Michael Basanovic also gave evidence that he was unaware that Wade had a gun at that time.

5. [9]

   Wade Basanovic said that he took the gun up with him because he did not feel safe without it. That was because he knew Steve always had a gun or had someone with a gun with him. He was asked how did he know that and he said:

6. [10]

   In cross-examination Wade said that he mixed that up and that Mr Brown told him this after the events because he “never spoke to Brownie about Steve”. For the purposes of the present application it must be accepted that there is evidence for the Crown at its highest that Mr Brown knew that Steve always had a gun or had someone with him who had a gun.

7. [11]

   The Crown also pointed to Wade Basanovic’s evidence that in the car after the shooting Mr Brown had said, “What the fuck was that?” The Crown pointed out that Michael Basanovic’s evidence was that nothing was said in the car afterwards. The Crown ultimately accepted that whether the words were said or not, the evidence was neutral as far as Mr Brown having any knowledge prior to the shooting either that Wade had a gun or that there was an intention to kill or inflict grievous bodily harm on Mr Mitrovic when they went to his premises.

8. [12]

   In my opinion, when all of this evidence is taken at its highest there is simply no evidence upon which the jury could find that Brian Brown was part of a joint criminal enterprise to kill or inflict grievous bodily harm on Steve Mitrovic. There is sufficient evidence to show an agreement between Mr Brown and the two co-accused to attend at the deceased’s premises. If the evidence of Michael Basanovic and Wade Basanovic is accepted the jury could infer that Mr Brown knew that they were intending to go to the premises to try to sort out the problem that Michael Basanovic found himself in, believing both that the deceased had offered Mr Brown $100,000 to position Michael Basanovic to be killed and, in any event, that Steve Mitrovic had a contract out on Michael Basanovic’s life. There is no evidence, however, from which the jury could infer that Mr Brown was aware that there was any intention to kill or commit grievous bodily harm on Steve Mitrovic nor that Mr Brown was aware that Wade Basanovic was carrying a gun when they went up to Mr Mitrovic’s offices.

9. [13]

   The evidence that Mr Brown left the country the following day on a one way ticket does not, without anything more, enable the jury to infer that he did so because he knew before he went to the premises either that Wade Basanovic was carrying a gun or that there was any intention to kill or commit grievous bodily harm.

10. [14]

    The Crown cannot in the first instance point to any arrangement to kill Mr Mitrovic before Brian Brown is involved in going with them to the premises. The strongest piece of evidence in the circumstantial case that is the joint criminal enterprise is the nod from father to son just before the shooting. That piece of evidence works to give some colour and emphasis to earlier matters that were arranged between father and son including even the arrangement to have Mr Brown accompany them. But there is nothing but speculation that Brian Brown was let into any arrangement that father and son had to murder or inflict grievous bodily harm on Steve Mitrovic.

11. [15]

    In my opinion there is no evidence upon which a jury could convict Mr Brown of either offence charged.

Application of Michael Basanovic

1. [16]

   Mr Korn for Michael Basanovic submitted that the Crown case was and had always been that there was an agreement between the three accused to go there that day and kill Mr Mitrovic. Mr Korn submitted that the Crown case had never been that there was some stepped process whereby they would go to speak to Mr Mitrovic to try and negotiate and resolve the matter but if that did not work out there was an agreement that Mr Mitrovic would be killed. Mr Korn submitted that the evidence of such an arrangement being inferred would be stronger if the only two accused were Michael and Wade Basanovic, partly at least because of the nature of their relationship. However, the matter has been put involving Mr Brown to the same extent.

2. [17]

   Mr Korn submitted that the Crown had never embraced the nod from Michael Basanovic to his son as being some part of a conditional arrangement. Mr Korn’s principal point appeared to be that the way the Crown had put its case was an all or nothing three way arrangement whereas the evidence of the nod could only be seen as part of a conditional arrangement between Michael Basanovic and his son Wade. In that way, because there was no evidence of Mr Brown’s involvement in the nod, there was nothing to go to the jury against Michael Basanovic by reason of the way the Crown had put its case.

3. [18]

   In my opinion, there is evidence capable of going to the jury of an agreement reached between Michael Basanovic and Wade Basanovic to kill Steve Mitrovic. Accepting the Crown’s case at its highest, the nod given by father to son immediately before the shooting suggests an arrangement had been made between them. Other circumstantial evidence which the jury can use in that regard is the following:

4. [19]

   I do not accept Mr Korn’s submission about the way the Crown has put its case. If any criticism can e made of the Crown it would go to a lack of specificity about the joint criminal enterprise. The Crown made it clear that the last time at which the agreement was made was at the point when Wade Basanovic rang his father from Dynamic transport’s yard after having spoken to Steve Mitrovic.

5. [20]

   Although the Crown’s case was that all three accused were part of the arrangement, it was never suggested that the arrangement was made at the one time when all three were present together. The presence and involvement of Mr Brown was not essential to the existence of an arrangement between Wade and his father. There was no evidence suggesting a specific or essential role for Mr Brown.

6. [21]

   The jury could not on the evidence have convicted Mr Brown because the highest the evidence went was an agreement to attend at the deceased’s premises in company for some purpose involving Michael Basanovic. The additional evidence of the knowledge by Wade of the existence and whereabouts of his father’s gun, the statements from Wade to Steve Mitrovic that he did not protect his father made with Wade’s knowledge of his father’s bashing, and the nod from father to son followed by the shooting all enable inferences to be drawn by the jury that a joint criminal enterprise to kill did exist.

Conclusion

1. [22]

   In relation to Brian Brown the jury will be directed to find him not guilty on both Counts.

2. [23]

   In relation to Michael Basanovic the no-case application is refused.