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
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.
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.
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].
In Doney v The Queen (1990) 171 CLR 207 the High Court said at 212 and 214:
There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict.
…
It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory (as to which see Whitehorn, Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521 and Morris v. The Queen [1987] HCA 50; (1987) 163 CLR 454) nor the inherent power of a court to prevent an abuse of process (as to which see Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 CLR 23) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial.
[3]
Application of Brian Brown
In her opening the Crown said this relevantly to Brian Brown:
It is the Crown case that the three of them were acting together; that they were part of a joint criminal enterprise to kill, or at the very least to inflict grievous bodily harm on Steve Mitrovic.
To find each of the accused guilty you would have to be satisfied beyond a reasonable doubt that they were part of the joint criminal enterprise to kill or to inflict grievous bodily harm upon Steve Mitrovic.
At the time Wade Basanovic fired the gun, the accused intended to kill or inflict grievous bodily harm on Steve Mitrovic.
…
The three accused intended to cause a really serious injury at that time [that Michael Bell was shot] to Steve Mitrovic. So, that is the intention to cause grievous bodily harm that is charged in relation to the Michael Bell shooting. Again, in relation to that charge, the three accused are all guilty of the offence regarding Michael Bell if you are satisfied beyond reasonable doubt that the three of them were acting together, that they were part of a joint criminal enterprise to kill Steve Mitrovic. That is an outline of the Crown case in this matter.
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:
(1) Brian Brown had been a member of the Hells Angels;
(2) He was present with Michael Basanovic and Wade Basanovic when the two cars were at the service station before the shooting, proved largely by the DNA on the chicken wings found in the rubbish bin at the service station;
(3) He went up into the offices of Dynamic Transport with the other two accused and argued with the deceased;
(4) He was walking away from the group at the time Michael Basanovic nodded to Wade Basanovic immediately before the shooting;
(5) He got into the silver sedan which had moved close to the exit to the Dynamic Transport offices and the car sped away from the scene;
(6) He left the country the next day by buying a one way air ticket to Chile.
The Crown also sought to rely on evidence given by Michael Basanovic and Wade Basanovic as follows:
(7) There were two meetings at Mr Brown's place where an arrangement was made for Frank Bacic to set up a meeting on behalf of Michael Basanovic with the deceased. These meetings took place on 13 and 14 January 2013;
(8) Mr Brown had been asked by Steve Mitrovic to arrange for Michael Basanovic to be positioned to enable him to be killed and had been offered $100,000 to do so.
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.
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:
I was told by dad and Brownie and people were saying they know Steve.
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.
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.
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.
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.
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.
In my opinion there is no evidence upon which a jury could convict Mr Brown of either offence charged.
[4]
Application of Michael Basanovic
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.
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.
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:
(1) The evidence of the meeting at Mr Brown's place with Mr Bacic about arranging a meeting with the deceased;
(2) The relaying of that arrangement from Michael Basanovic to Wade Basanovic;
(3) The knowledge that Wade Basanovic had that his father was bashed by or at the instigation of the deceased at the club house;
(4) The knowledge that Wade had from his father that the police had informed him that there was a contract out on his life;
(5) The knowledge that Wade had from his father about the visit of the Hells Angels to his grandparents' place around new year 2013;
(6) The evidence that Michael Basanovic had been carrying a gun with him since moving to Brighton Le Sands and Wade's knowledge of that gun including where in the car it was kept;
(7) The evidence of the visit to the offices of Dynamic Transport with a group of solid male support preceded by Wade ascertaining that the deceased had no support himself before Wade would ring his father to let him know to come to the Dynamic Transport premises.
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.
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.
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.
[5]
Conclusion
In relation to Brian Brown the jury will be directed to find him not guilty on both Counts.
In relation to Michael Basanovic the no-case application is refused.
[6]
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Decision last updated: 01 September 2015