Solicitors:
Korn Macdougall Legal (Michael Basanovic - Accused)
Korn Macdougall Legal (Wade Adil Basanovic - Accused)
Zahr & Zahr Lawyers (Brian Brown - Accused)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2013/63525; 2013/88487 & 2013/88507
[2]
Judgment
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:
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
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:
[36] In my opinion, evidence of the 1978 murders, and the reference to them in the threat made by the deceased to Mr. Logounov just a few hours before the stabbing, had significant probative value, in this way. In the absence of that evidence, the appellant's evidence that the deceased threatened to kill him in such a way as to make him fearful for his life, and continued to make such threats and to attack him notwithstanding the appellant's use of a knife, seems on the face of it highly improbable. In my opinion, it becomes less so once one knows that the deceased had committed three murders in the circumstances outlined, albeit as long ago as 1978, and also had made reference to those three murders in uttering a threat to kill Mr. Logounov just a few hours before. Of course, both the murders themselves and the threat made in this way to Mr. Logounov were not known to the appellant, but that does not reduce the relevance of the evidence. If the question to be determined was whether it was proved that the deceased actually did what the appellant said he did, beyond reasonable doubt or even on the balance of probabilities, one might consider the probative value of evidence that he murdered three people over twenty years before to be quite small, and also that there was a real chance that this probative value would be outweighed by its prejudicial effect. But in this case the question is rather whether there is a reasonable possibility that the deceased did these things, which otherwise might seem to be extremely improbable. On that question, in my opinion the evidence of the murders in 1978, coupled with evidence from an independent witness that, just a few hours earlier, the deceased had referred to these three previous murders apparently to add force and credibility to a threat to kill that person, is of substantial probative value.
[37] On the question of notice under s.97, in my opinion the significant probative value of the evidence is not as tendency evidence, to which s.97 applies: the main relevance of the evidence is not to prove that the deceased had "a tendency … to act in a particular way", but rather to suggest that the deceased was a person who was not subject to very strong inhibitions against killing and contemplation of killing in the same way as are the great majority of people. This is not to say that the deceased had a tendency to kill, but rather that there is less improbability in the deceased killing or making a serious threat to kill another person, than there would be for the great majority of people. …
[38] Considered in that way, in my opinion the evidence did not require or even justify detailed examination of the circumstances of the 1978 killings, and detailed comparison of those circumstances with the circumstances of the encounter between the deceased and the appellant in this case. The brief outline of the circumstances, which was common ground between the appellant and the Crown, was sufficient for this aspect of relevance.
[39] It may be that the evidence could have had some relevance as tendency evidence, within s.97, as evidence of a tendency to act violently when affected by alcohol. If that had been the only relevance of the evidence, this could have been affected by a more detailed examination of the circumstances of the 1978 murders. Had the Crown taken the point, the absence of the required notice under s.97 could have been significant, because the Crown could have said it needed an opportunity to investigate further the circumstances of the 1978 murders. However, in my opinion any relevance of the evidence in this respect would be of much less significance than its relevance in the other respect that I have referred to, and may not have added much to what was already indicated by the evidence of the incident with Mr. Logounov. As tendency evidence, it may therefore not have passed the s.97(1)(b) threshold. However, for the reasons given above, the evidence was relevant and admissible otherwise than as tendency evidence.
[40] It was vital to the appellant's defence of self-defence that the jury accept there was at least a reasonable possibility that the deceased had acted in the way described by the appellant, and as I have said the evidence of the 1978 murders and the deceased's reference to them in the Logounov incident was relevant to this. Furthermore, although provocation was not the defence relied on by the appellant, it was left to the jury. If the jury rejected self-defence but considered that the appellant had lost self-control, the question of whether it was reasonably possible that the deceased acted as the appellant described would have been relevant to the question of provocation also.
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:
[70] As to Ground 2, concerning evidence that the deceased had murdered three people on an earlier occasion, I have some reservation about his Honour's view, and that of Hulme J, that the evidence was admissible other than as tendency evidence. I agree that the evidence had probative force for the reasons identified by their Honours, that is, that it lent some credence to the appellant's account of the deceased's behaviour, which otherwise would have seemed highly improbable. However, in my view, it did so because it demonstrated a propensity on the part of the deceased to retaliate in an extremely violent way against anyone who crossed him. (Whether he was affected by alcohol is not the point.) This, it appears to me, is necessarily tendency evidence. The incident involving Mr Logounov, although of a very different character, might be seen as a demonstration of the same propensity.
[71] However, the evidence about the murders was admissible as tendency evidence because it had significant probative value despite its remoteness in time and lack of circumstantial detail. That probative value was enhanced by evidence that the deceased referred to those murders in his altercation with Mr Logounov. As it was evidence tendered by the appellant, it did not require the substantial measure of probative force mandated by s101 of the Evidence Act and, as Hodgson JA has pointed out, it was tendered in respect of an issue upon which the Crown, not the appellant, bore the burden of proof.
[72] Lack of notice pursuant to s97(1)(a) of the Act formed no part of O'Keefe J's reasons for rejecting the evidence, and does not appear to have been argued at the trial. No doubt, the Crown would suffer some prejudice from an inability so long after the event to examine the circumstances of the murders. However, that would not justify the exercise of the discretion under s135 of the Act to reject the evidence. In my view, a trial judge would need to think long and hard before exercising that discretion against an accused in a criminal trial.
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:
[60] It is apparent from this summary that it was not known what were the operative factor(s) that inspired the killing. Experience in this Court shows that in the field of drug dealing, killing at times is just one of the occupational hazards. For all this Court knows, the deceased may indeed have been a major drug dealer and the killings done by way of general deterrence to others tempted to cheat him. Furthermore, while apparently present in 1978, alcohol might have not have had any operative force, so incensed may the deceased have been with being cheated. Without more information the evidence of events in 1978 was not probative of the deceased having any particular tendency.
[61] To these considerations must be added also the passage of time and intervening imprisonment. In these circumstances, it is impossible to infer from the events of 1978 that in 2001 the deceased had a tendency to kill or act violently when affected by alcohol.
[62] So removed in time were they that I very much doubt if it would even have been possible to infer from events in 1978 what tendency the deceased may have had in 2001. But at the very least if the events of 1978 were to have any probative value on that issue, a substantial if not full account of the circumstances operating on the deceased in 1978 would be necessary. …
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.
[3]
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Decision last updated: 01 September 2015