R v Basanovic, Michael; R v Basanovic, Wade

Held at [62]-[64] (4) There is no onus of proof on an accused person, and there is no standard of proof applicable to evidence called by an accused person. A direction that implied that acts relied on by an accused person as evidence of tendency must be proven on the balance of probabilities was erroneous. HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 cited; FDP v R (2008) 74 NSWLR 645; [2008] NSWCCA 317 cited; Campbell v R (2014) 312 ALR 129; [2014] NSWCCA 175 cited. (5) The wrong decision of a question of law is not, of itself, sufficient to enliven the requirement to allow an appeal; it is also necessary that the Court be of the opinion that the verdict should be set aside.

Judgment

1. SIMPSON AJA: On 4 August 2015 in the Supreme Court of NSW Michael Basanovic, Brian Brown and Wade Basanovic were jointly arraigned on an indictment that charged them with two offences, each alleged to have been committed on 15 January 2013. The first count was of the murder of Zeljko Mitrovic. The second count was of causing grievous bodily harm to Michael Bell, with intent to do so. Each accused entered a plea of not guilty to each count and a trial by jury proceeded. The Crown case, in brief, was that each accused was party to a joint criminal enterprise to kill Mr Mitrovic or cause him grievous bodily harm, that Mr Mitrovic was in fact killed, and that Mr Bell was seriously injured in the course of the execution of the enterprise.
2. Evidence in the Crown case concluded on 17 August 2015. Michael Basanovic then gave oral evidence and called a witness, Hassan (also known as Sam) Ibrahim. He denied being party to a joint criminal enterprise. On 20 August Wade Basanovic gave evidence. He also denied being part of a joint criminal enterprise, and raised a defence of self-defence, as provided by s 418 of the Crimes Act 1900 (NSW). Section 418 of the Crimes Act is set out in full at 73 below.
3. On 25 August 2015, on the direction of the trial judge, the jury returned a verdict of not guilty to each count against Brian Brown and he was discharged. Counsel then proceeded to address and the trial judge summed up. The jury retired on 28 August 2015.
4. On 31 August the jury returned its verdicts. It found Michael Basanovic guilty of both the murder of Mr Mitrovic, and of causing grievous bodily harm to Mr Bell. It found Wade Basanovic not guilty of murder, but guilty of the manslaughter of Mr Mitrovic, and guilty of causing grievous bodily harm to Mr Bell.
5. On 21 March 2016 each appellant was sentenced. On the count of causing grievous bodily harm, Michael Basanovic was sentenced to imprisonment for 9 years and 4 months, with a non-parole period of 7 years, commencing on 8 May 2013. On the count of murder he was sentenced to imprisonment for 24 years and 9 months with a non-parole period of 18 years, commencing on 8 May 2016 (that is, accumulated by 3 years on the earlier imposed sentence). The total effective sentence was imprisonment for 27 years and 9 months, with a non-parole period of 21 years.
6. On the count of causing grievous bodily harm, Wade Basanovic was sentenced to imprisonment for 9 years and 2 months with a non-parole period of 7 years, commencing on 4 May 2013. On the count of manslaughter he was sentenced to imprisonment for 11 years and 6 months, with a non-parole period of 8 years, commencing on 4 May 2016 (and thus also accumulated by 3 years on the earlier imposed sentence). The total effective sentence was imprisonment for 14 years and 6 months, with a non-parole period of 11 years.
7. Pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW), each appellant now appeals against the convictions. Wade Basanovic seeks leave to appeal against the sentence imposed.
8. Section 6(1) of the Criminal Appeal Act provides: "6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

The Crown case

1. As indicated above, the Crown case was that Michael Basanovic and Wade Basanovic (and Brian Brown) were parties to a joint criminal enterprise to kill or inflict grievous bodily harm on Mr Mitrovic (who was commonly known, and referred to in the trial, as "Steve" Mitrovic) and that they carried out that joint criminal enterprise on 15 January 2013, at Mr Mitrovic's business premises at Wetherill Park. What immediately follows is taken from the evidence adduced in the Crown case. It was significantly fleshed out in the evidence given by the appellants, to which I will come.
2. The Basanovics are father (Michael) and son (Wade). From about 1997 Michael Basanovic had been associated with outlaw motorcycle clubs, initially the Bandidos, and then the Hell's Angels. Mr Mitrovic was also a member of the Hell's Angels, and part of the same chapter as Michael Basanovic. Brian Brown was another member of the chapter. Michael Basanovic left the Hell's Angels, but his departure was not voluntary. In April 2011 he told a police officer that he was no longer a member of any outlaw motorcycle club, and exhibited some hostility to the Hell's Angels. He said: "Things can only get worse from here … I have to protect my family. If they threaten my family again, then I have to do what I have to do".
3. Mr Mitrovic operated a transport business at Wetherill Park, called "Dynamic Transport". During the early afternoon of 15 January 2013 a number of men (including Wade Basanovic and a man called Frank Bacic) drove to the premises of Dynamic Transport, in order to confront Mr Mitrovic. Mr Mitrovic was not then present and the men left. Later in the afternoon of the same day, eight men arrived at the premises, in two vehicles. One of the vehicles belonged to Michael Basanovic. Both appellants were present. Wade Basanovic was armed with a pistol, which he concealed in the pocket of his shorts. While the other men waited in the vehicles in the yard of the premises, the two appellants and Mr Brown walked upstairs to the office where Mr Mitrovic was. Also present were Michael Bell (an office clerk), Anthony Naaman (a sales executive), and Ms Mandy Mokhtar (who worked in the business in accounts and general administration, and who was married to Mr Naaman). A heated argument ensued, during which Wade Basanovic accused Mr Mitrovic of "not protecting my dad." Mr Mitrovic became aggressive. At some point he used a telephone to call for assistance.
4. Michael Basanovic then gave a signal (a nod) to Wade Basanovic, who produced the gun from his pocket. He fired five shots, three of which penetrated Mr Mitrovic's body, killing him, and one of which struck Michael Bell in the arm, causing grievous bodily harm. Within seconds the appellants and Brian Brown left the office and the two vehicles drove off.
5. The following day Wade Basanovic and Brian Brown flew from Sydney airport to Colombia on tickets purchased for them by Michael Basanovic. Michael Basanovic also began to make preparations to leave the country. In April and May Wade Basanovic and Brian Brown returned to Australia and surrendered themselves to police.
6. The entirety of the encounter in the office of Dynamic Transport was recorded on closed circuit television. Apart from one matter, there was little, if any, dispute about the events as outlined above. The single exception, which is of significance, was whether Michael Basanovic had, as the Crown alleged, given a signal to Wade Basanovic, as a result of which Wade Basanovic fired the pistol. That such a signal was given was the evidence of Mr Bell. It was denied by both appellants.
7. It was thus the Crown case that the jury could properly infer that the excursion to the office of Dynamic Transport was pre-arranged and part of an agreement between at least Michael Basanovic, Wade Basanovic and Brian Brown, the agreement being to kill Mr Mitrovic or inflict on him grievous bodily harm. The Crown placed significant, but not critical, weight on Mr Bell's evidence that he had observed Michael Basanovic nod to Wade Basanovic, immediately following which Wade Basanovic fired the shots.

The defence cases

1. It was not disputed that Wade Basanovic had fired the five shots, and, indeed, that fact formed part of a series of agreed facts presented to the jury.
2. On the tenth day of trial (14 August 2015) legal representatives of the appellants jointly served a notice under s 97(1)(b) of the Evidence Act 1995, advising of their intention to adduce tendency evidence.
3. Section 97(1) of the Evidence Act provides as follows: "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."
4. The Notice stated that the appellants intended to adduce evidence that Mr Mitrovic had a tendency (I summarise and paraphrase) to behave violently, to threaten people with violence in certain circumstances, to threaten to kill, to be involved in the distribution of illicit drugs, and to use outlaw motorcycle gangs to threaten violence against people, and to have a particular state of mind, specifically to be angry when he considered that his commercial interests were threatened.
5. The tendency evidence of which the appellants gave notice was contained in a statement made by Hassan (Sam) Ibrahim in which Mr Ibrahim recounted a number of events where he said, Mr Mitrovic had threatened or committed violence.

(i) Michael Basanovic

1. Michael Basanovic began giving evidence on 17 August 2015. By way of background to the events of January 2013, he gave a detailed account of his association with outlaw motorcycle clubs. He said that he had been a member of the Bandidos for about 7 years, from 1997and had separated from them on good terms. In about 2009, he then joined the Hell's Angels, on the invitation of Mr Mitrovic (who he had met in prison). He said that they had become "pretty close". On 50 to 100 occasions, over a period of about 18 months, he had assisted Mr Mitrovic by "cooking" methylamphetamine. This was a very profitable enterprise.
2. Tensions arose between Michael Basanovic and Mr Mitrovic when Michael Basanovic wanted, for mainly personal reasons, to reduce his participation in drug manufacture and Mr Mitrovic pressured him to do more.
3. Towards the end of 2010 a meeting took place at the Hell's Angels' club house in Petersham. Michael Basanovic was badly assaulted and suffered serious injury with ongoing effects. He considered that Mr Mitrovic was responsible for the assault. Thereafter he took steps to terminate his association. Mr Mitrovic made some attempt at reconciliation, which Michael Basanovic rebuffed. For a period of about 6 months he had no contact with Mr Mitrovic.
4. In 2011 a police officer told him that his life was in danger, and that "there's a contract on you". Michael Basanovic took this to mean that Mr Mitrovic had offered a reward for him to be killed. On two subsequent occasions, the second around new year in 2013, members of Hell's Angels attended the home of his parents. He took this to be a warning. He moved to an address in Brighton Le Sands to avoid the Hell's Angels. (Brighton Le Sands was territory claimed by a rival outlaw motorcycle club, the Comancheros).
5. Michael Basanovic's mother told him that Mr Mitrovic had called at their home (her husband had terminal cancer). Michael Basanovic contacted Mr Mitrovic by text message to complain of the contact. After an initially hostile response, Mr Mitrovic suggested that they "sort it out". Michael Basanovic responded by saying "what, so I can get bashed again?" In another text, he said: "I don't need you or the fucking club … I can go elsewhere. I have changed clubs before and I can do it again." Mr Mitrovic's response was: "You're not going anywhere. You're a dead man".
6. Michael Basanovic then said that he was convinced that Mr Mitrovic was going to kill him. He said that his threat to leave the Hell's Angels and change clubs was outside the rules of outlaw motorcycle clubs.
7. He said, however, that he understood that it was possible to "buy my way out of it" by payment of money. He said that he determined to try to get in touch with Mr Mitrovic to talk to him (he had met Frank Bacic who said he was a good friend of Mr Mitrovic), and decided to see if Mr Bacic would intervene on his behalf by setting up a meeting to try to resolve the issue.
8. That was the purpose of the visit to Dynamic Transport on 15 January 2013. Michael Basanovic asked Wade Basanovic, Brian Brown and some others to accompany him to the meeting with Mr Mitrovic because he understood that Mr Mitrovic usually had "boys around him all the time".
9. He sent Wade Basanovic ahead to see if Mr Mitrovic was present. He was not, so the men went to a kebab shop for lunch, and then returned, in two vehicles, to the premises. Wade went ahead in Michael's vehicle and telephoned his father.
10. He said that Wade told him that he had spoken to Mr Mitrovic, who claimed not to know Michael Basanovic. Wade told Michael Basanovic that Mr Mitrovic was very angry. He (Michael) went upstairs to the office, where he encountered Mr Mitrovic, who was very angry and aggressive. Mr Mitrovic demanded to know why Michael Basanovic had come accompanied by others. Michael Basanovic answered that the last time he had come, he had got bashed. He then demanded to know if Mr Mitrovic was "going to lift it or not?" (This is a clear reference to cancelling the contract to have him killed). He said that Mr Brown had told him that Mr Mitrovic had offered $100,000 to set up Michael Basanovic so that he could be killed, an assertion that Mr Brown confirmed.
11. There was then a hostile confrontation between Michael Basanovic and Mr Mitrovic about the contract to kill, during which Mr Mitrovic was very aggressive.That was followed by a confrontation between Wade Basanovic and Mr Mitrovic, after which Michael Basanovic said "this is not getting us anywhere". Mr Mitrovic replied "you're all fucking dead".
12. Michael then turned to Wade and said "let's get out of here".
13. Michael Basanovic gave evidence that, when Mr Mitrovic said "you're all dead", he knew that his life was in danger. He said: "I just know Steve too well. I've been around when he's bashed people. I've been around when he's shot at people. I've been around long enough to know - I mean, he set up the two Turks."
14. This was a reference to two charges of murder that Mr Mitrovic had faced, with respect to each of which he was convicted of manslaughter. Michael Basanovic gave some detailed evidence of occasions when he had observed violence at the hands of Mr Mitrovic.
15. He expressly denied going to the premises with the intention that Mr Mitrovic would be killed or in any way the subject of violence.
16. He said that, since 2011, he had carried a gun, in order to protect himself from Mr Mitrovic, but that, before going into the office of Dynamic Transport, he had left it in the car.
17. Mr Ibrahim gave evidence in accordance with the statement that had been served. He said that he was a life member of an outlaw motor cycle club called the Nomads, and a former local and national president. He gave an account of serious criminal activity in the Kings Cross area, in which he and Mr Mitrovic had participated, and of a number of instances of violence on the part of Mr Mitrovic. He said that Mr Mitrovic made threats "to get" Michael and Wade Basanovic.

(ii) Wade Basanovic

1. Wade Basanovic gave evidence largely consistent with that of his father concerning events prior to 15 January 2013, and relations with Mr Mitrovic.
2. He said that he was aware that his father had been bashed at the Hell's Angels' club house because he had wanted to leave the club. He was aware that his father had been warned by police that his life was in danger, that there was a contract on his life, and that he believed that Mr Mitrovic was responsible. He was aware that his father did not want to go out alone, and that it was safer for both of them to be in each other's company. He was aware of the visits by members of the Hell's Angels to his grandparents' home.
3. The following questions and answers appear in the transcript: "Q: What had your father told you about Steve Mitrovic? A: He told me he was hard core; he had been in jail before; he'd just got out of jail for a double murder. This was when I moved out. … Q: Did he [say] anything else about Steve? A: 'You don't fuck with Steve', things like that. Q: What did you understand that 'hard core' meant? A: Steve would kill people. He was very violent."
4. He said that thereafter Michael Basanovic set up a meeting with Mr Mitrovic. He said that, at a social gathering at Mr Brown's home, an arrangement was made for Frank Bacic and Michael Basanovic to go to see Mr Mitrovic.
5. He then gave an account of the events of 15 January 2013. He said that he and Frank Bacic initially went to Dynamic Transport and found that Mr Mitrovic was not there, and that they left and later returned. Frank Bacic then told them that Mr Mitrovic was present because his car was in the yard. He said that he armed himself with the gun that his father kept in the car. He did this because he knew that Mr Mitrovic always had a gun, or someone with him who was armed. After a hostile encounter downstairs, Mr Mitrovic went upstairs to the office. Shortly after, the appellants and Brian Brown followed. There was a heated argument, at the end of which Mr Mitrovic said (as recorded in the transcript): "Mike, after all I have done for me you want to go fucking elsewhere, you're all dead." (It seems that "me" was either a slip of the tongue by Wade Basanovic, or a mistranscription).
6. He said that he asked his father if he heard that, to which his father responded by saying: "Yeah, let's get out of here." and that he (Michael Basanovic) started walking off.
7. The following passage of transcript bears repeating in full: "Q: What happened then? A: Then I just lost it. I pulled out the gun and I shot Steve. Q: Why did you pull out the gun and shoot Steve? A: Because I knew the moment me and Dad left there we were dead. We were dead men walking. Q: Why did you think that? A: I knew it was only a matter of time before we would be killed and this time we wouldn't see it. Q: This time we wouldn't see it? A: We would never see it coming. Q: What do you mean by that? A: This time we will be killed properly. Q: What made you think Mr Mitrovic was somebody who could have killed you and your father? A: I knew Mr Mitrovic was someone who could have killed me and my dad told me. I knew about the people he had killed. Q: You pulled out the gun and shot him? A: Yep. Q: More than once? A: Yeah, I kept shooting until he fell down. Q: What happened then? A: I knew if I didn't kill him he would have killed us. Q: What do you do after you had shot him? A: After I finished shooting? Q: Yes? A: I got out of there. I was terrified."
8. In cross-examination by counsel for Michael Basanovic, Wade said that there was no prior arrangement for him to go to Dynamic Transport, with his father or anybody else, for the purpose of killing Mr Mitrovic. He said that their purpose was to talk to Mr Mitrovic and "hopefully sort it out."
9. He said that he recalled a worker (presumably Mr Naaman) walking around trying to get behind his father. He was concerned that the worker wanted to attack Michael Basanovic from behind "or do something". He therefore positioned himself so that he could intervene.

(iii) Final addresses by counsel

1. Counsel for Michael Basanovic put his position unequivocally: it was that Michael Basanovic had gone to Dynamic Transport peacefully, with the intention of resolving the tensions that had arisen between him and Mr Mitrovic. He began by pointing to what he described as the implausibility of the scenario on which the Crown relied: a joint criminal enterprise to attend the business premises of the proposed victim, using the perpetrator's own vehicle, in daylight hours, at a time when the business's employees would be present, in order to carry out an execution. He laid particular emphasis on the evidence, which he pointed out was undisputed by the Crown, that Mr Mitrovic had offered money for Michael Basanovic to be killed. He laid further emphasis on the evidence, again undisputed, that Mr Mitrovic was "a violent, dangerous man", exemplified by the earlier assault on Michael Basanovic. He pointed to evidence given by Mr Naaman that the aggression had originated with Mr Mitrovic. He pointed to the evidence that Mr Naaman had moved in the direction of Michael Basanovic, arousing suspicion in Wade Basanovic that he was about to take some kind of action against his father.
2. The theme of the address was, as had been the theme of the defence case throughout the trial, an outright denial of any joint criminal enterprise, and an outright denial of any intention to cause harm to Mr Mitrovic.
3. Notably, there was never the slightest suggestion that Michael Basanovic had acted in self-defence. Such a suggestion would have been antithetical to the clear strategy of the defence case.
4. Counsel for Wade Basanovic took a different approach. At the outset, he identified self-defence as the real issue for determination. However, he argued that the evidence did not support the Crown's contention that the Basanovics went to the premises with killing or injuring in mind: rather, he argued, Wade Basanovic took the gun by way of protection against a potential hostile response by a man known to be violent, and that his decision to fire the gun came only after such a hostile response had been made manifest. He concluded with an argument concerning self-defence.

(iv) The summing-up

1. The trial judge gave detailed directions, both in writing and orally, on the elements of self-defence, and also of provocation (Crimes Act 1900 (NSW), s 23). No issue is taken on appeal with respect to the accuracy of those directions. The written directions in particular are directed to the position of Wade Basanovic and not to Michael Basanovic. That was expressly stated in the oral directions and restated after the jury had asked a question.The judge then directed the jury: "I just remind you also that in the case of Michael Basanovic self defence does not apply. A determination of his position comes from a determination of whether you believe the Crown has proved beyond reasonable doubt that he was part of a joint criminal enterprise to kill. If the Crown has not proved that beyond reasonable doubt then Michael Basanovic is not guilty of either offence." That was in accordance with the manner in which the defence cases had been conducted.
2. The trial judge then directed the jury with respect to the tendency evidence, in a manner that needs to be set out in full. As recorded in the transcript, the directions were as follows: "You have also heard evidence, what I have just outlined, from Sam Ibrahim of events where Mr Mitrovic behaved in a violent manner or threatened violence against people. The evidence is before you because the accused persons say there is a pattern of behaviour that reveals that Mr Mitrovic has a tendency to do the following things: - to threaten people with violence if they do not follow his directions. - to threaten people with violence if they do not work for him when requested to do so. - to use violence when a person refused to work for him. - to use extreme violence as a tool of coercion. - to threaten or kill people. - to use outlaw motorcycle gangs to threaten violence against people. The evidence is before you that reveals that Mr Mitrovic has a tenancy [sic] - tendency to have a particular state of mind. That is to be angry when he considered that his commercial interests were threatened. The evidence suggesting that Mr Mitrovic had that tendency can only be used by you in the way that the accused persons ask you to use it if you make two findings. The first finding is that you are satisfied that one or more of those acts occurred, that is the acts that you have heard evidence about. In making that finding you do not consider each of the acts in isolation, but consider all the evidence and ask yourself whether you find that a particular act or acts relied upon actually took place. If you find that none of the acts are proved on the balance of probabilities then you must put aside any suggestion that Mr Mitrovic has the tendency that the accused persons say he does. If you do find one or more of those acts occurred then you go on to consider the second finding. You ask yourself whether from the act or acts that you have found proved you can conclude that Mr Mitrovic had the tendency alleged. If you cannot draw that conclusion then again you must put aside any suggestion that Mr Mitrovic had the tendency alleged. So if having found one or more of the acts attributed to Mr Mitrovic to have been proven and you can from the proven act or acts conclude that Mr Mitrovic had the tendencies alleged you may use the fact of that tendency and/or his state of mind in considering whether Steve Mitrovic had a contract out on the life of Michael Basanovic and whether he threatened to kill him on 15 January 2013." (italics added)

The grounds of appeal

1. The grounds of appeal as pleaded are as follows:

Michael Basanovic 1. Ground one: a miscarriage of justice was occasioned by the trial judge's failure to leave the offence of manslaughter as an alternative to the offence of murder. 2. Ground two: a miscarriage of justice was occasioned by the trial judge's failure to direct the jury on the availability of the defence of self-defence (including excessive self-defence), in relation to the offence of murder. 3. Ground three: the trial judge erred in directing the jury that it needed to be satisfied that the appellant had proven one or more tendency incidents, in respect of the deceased, on the balance of probabilities before it could conclude that the deceased had the tendency for which the appellant (and his co-accused) contended. 4. Ground four: the verdicts are unreasonable or cannot be supported by the evidence.

Wade Basanovic

1. Wade Basanovic raised only one ground of appeal against his conviction. That ground was in the same terms as ground 3 of Michael Basanovic's grounds.

The tendency evidence grounds

1. It is convenient to commence with the ground that is common to both appellants, by which they complain of the directions given in relation to the tendency evidence. What is compendiously referred to as "the tendency evidence" is evidence that both appellants put forward to the effect that Mr Mitrovic was a man who used extreme violence. Specific instances of his violence were given by Hassan Ibrahim, none of which was disputed by the Crown.
2. Although the findings made by Hidden J in sentencing Mr Mitrovic for the two counts of manslaughter referred to above were in evidence, (R v Pula, R v Nitrovic [sic], R v Nadiul, R v Oldham, R v Nanai [2001[ NSWSC 225) counsel expressly disavowed reliance on those facts as supporting the tendency they alleged. The short facts of those offences, as found by Hidden J, were that, in 1998, in company with seven or eight other men, Mr Mitrovic took part in a pre-arranged assault of two men for an unknown motive. Their plan was to overpower the two victims and bind and gag them. At least one of the men was armed with a gun. The two victims were killed.
3. The directions to be given in relation to the tendency evidence had been the subject of discussion during the trial. On 25 August (which was after the Crown Prosecutor had completed her final address) counsel for Wade Basanovic provided a "suggested tendency direction" to the trial judge. There was some discussion about its content, but that was principally concerned with whether the findings in relation to the manslaughter convictions ought to be included as evidence of tendency - something which counsel for Wade Basanovic expressly disavowed, and about which counsel for Michael Basanovic expressed no view.
4. Importantly, the direction given by the trial judge was almost precisely in the terms suggested, which, notably, included reference to proof of the tendency facts on the balance of probabilities. Counsel for Michael Basanovic took no part in the discussion and made no complaint about any part of the suggested direction.
5. Both appellants now complain that the direction was erroneous for (it seems to me) two reasons: first, that it reversed the onus of proof by casting a burden on the appellants to prove (although on the civil standard) a part of their case; and second, as contrary to authority that (except where a fact advanced by the Crown as supporting a tendency is an indispensable step in the process of proving guilt in a circumstantial case) no particular standard of proof of tendency evidence is required. Reference was made to a number of authorities, including HML v The Queen (2008) 235 CLR 334; [2008] HCA 16; FDP v R (2008) 74 NSWLR 645; [2008] NSWCCA 317; Campbell v R (2014) 312 ALR 129; [2014] NSWCCA 175.
6. It was acknowledged that, since no point in relation to the direction had been taken at trial, the appellants required leave under r 4 of the Criminal Appeal Rules to argue this ground.
7. In response, the Crown pointed out that the direction given was in accordance with that proposed by counsel for Wade Basanovic (with no stated opposition from or for Michael Basanovic) but, nevertheless, accepted that the intrusion of the concept of a standard of proof was erroneous. Notwithstanding the error, the Crown contended, the misdirection was of no importance in the light of the way the evidence was led and the issues in the trial.
8. In my opinion, the concession was properly made by the Crown. There is no onus of proof on an accused person, and there is no standard of proof applicable to evidence called by an accused. The direction was erroneous.
9. Section 6(1) of the Criminal Appeal Act has been set out above. It requires (subject to the proviso) that an appeal against conviction be allowed in any of three specific circumstances. Those circumstances are: 1. where the verdict is unreasonable or cannot be supported having regard to the evidence; 2. that the verdict should be set aside on the ground of the wrong decision of any question of law; 3. that on any other ground whatsoever there was a miscarriage of justice.
10. Only the second of these could be applicable. It may be accepted that the direction amounted to a wrong decision on a question of law, as contemplated by that circumstance. But the wrong decision of a question of law is not, of itself, sufficient to enliven the requirement to allow the appeal; it is also necessary that the court be of the opinion that the verdict should be set aside.
11. I am not of that opinion. The error was instigated by the draft directions provided by counsel for Wade Basanovic, and not opposed by counsel for Michael Basanovic. More importantly, it is inconceivable that the introduction of a standard of proof of the factual matters relied on as tendency evidence had any effect on the jury deliberations. The tendency the appellants sought to raise was the tendency of Mr Mitrovic to violence. That tendency was the subject of evidence of an admitted member (or former member) and senior office holder of an outlaw motorcycle club, whose evidence was not in any way challenged and, although counsel disavowed reliance on the findings of Hidden J in relation to Mr Mitrovic's manslaughter convictions as tendency evidence, those facts were nevertheless before the jury. The jury could have been in no doubt that Mr Mitrovic was a violent man.
12. Underlying the ground is the notion that, because a standard of proof of the tendency facts was imposed, the jury might have discarded the ultimate tendency for which the appellants contended. That proposition is untenable. I would refuse leave under Rule 4 to argue this ground. If leave were given, I would nevertheless reject the ground.
13. This being the only ground of appeal against conviction raised by Wade Basanovic, his appeal must be dismissed.

Self-Defence: grounds 1 and 2

1. Notwithstanding that Wade Basanovic, who fired the fatal shots, was acquitted of murder and convicted of the lesser offence of manslaughter, Michael Basanovic, who did not fire the shots, was convicted of murder.
2. Michael Basanovic did not raise any issue of inconsistency of the verdicts. This course was taken in recognition of the decision of the High Court in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75. While there were significant differences between that case and the present, the majority (McHugh, Kirby and Callinan JJ) held that there was no remediable inconsistency in a verdict of guilty of murder against one participant in a joint criminal enterprise, and either a failure to agree, or an acquittal, of the other: McHugh J at [118], [128]-[129], Kirby J at [178] and Callinan J at [228]-[236].
3. At [118] McHugh J said: "118 There are some highly technical cases, to which I will refer, where the inconsistency of verdicts ipso facto requires the quashing of a conviction. But ordinarily, where an appeal concerns inconsistent verdicts, the issue is whether the apparent inconsistency indicates that the conviction is unsafe. That issue is determined by examining the evidence and the directions to the jury, not by comparing the verdicts to some principle, rule or standard that was never part of the case."
4. In this case the divergent verdicts may be explained by the divergent approaches taken by (or on behalf of) the appellants. While denying any joint criminal enterprise, Wade Basanovic nevertheless placed considerable weight on the evidence of threats made by Mr Mitrovic during the final confrontation, as well as his knowledge of Mr Mitrovic's previous violent habits, and expressly relied on self-defence. It has been accepted, for the purposes of this appeal, that the explanation for the verdict of manslaughter against Wade Basanovic is self-defence, not provocation. Michael Basanovic declined to take the course adopted by Wade, and relied solely on his denial of participation in a joint criminal enterprise.
5. By these grounds Michael Basanovic complains that the trial judge ought to have left to the jury self-defence as a defence or partial defence, notwithstanding that that had been no part of his case.
6. Sections 418, 419 and 421 of the Crimes Act provide as follows: "418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. 419 Self-defence - onus of proof In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence. 421 Self-defence - excessive force that inflicts death (1) This section applies if: (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter."
7. Bearing in mind that, by s 419, the Crown bears the onus of proving that the relevant conduct was not carried out in self-defence, where the issue is raised to a charge of murder, three possible verdicts are available: 1. not guilty: where the Crown fails to prove that the accused person did not believe that the conduct was necessary (for any of the specified reasons) or fails to prove that the conduct was not a reasonable response in the circumstances as perceived by the accused person; 2. not guilty of murder, but guilty of manslaughter: where the Crown fails to prove that the accused person did not believe that the conduct causing death was necessary (for either of the reasons specified) but proves that the response was not a reasonable response in the circumstances as perceived by the accused person; 3. guilty: where the Crown proves that the accused person did not believe that the conduct was necessary for any of the reasons specified in s 418(2). (The second is commonly known as manslaughter by excessive self-defence).
8. The strategy adopted on behalf of Michael Basanovic is readily apparent in the cross-examination of the Crown witnesses, his own evidence in chief, and, most particularly, counsel's final address. It was to expose what was presented as the improbability of the Crown case: as outlined above, that he was one of a group of men, using a vehicle owned by him, who drove in business hours to business premises occupied by the proposed victim, at a time when staff would be expected to be present, in order to kill or injure the proposed victim. His defence was denial of any agreement to kill or injure Mr Mitrovic. That strategy left no room for any alternative position such as self-defence, which would have depended upon some evidence that he believed that it was necessary, in order to defend himself, to kill Mr Mitrovic.
9. In support of these grounds, Michael Basanovic pointed to an established line of authority to the effect that, whatever the position adopted by an accused person, a trial judge has, in certain circumstances, an obligation to leave to a jury available defences or alternative verdicts. That proposition is not in doubt.
10. The Crown position was that for the judge to have directed the jury on self-defence would seriously have undermined Michael Basanovic's case as presented. That may be so, but it is no answer to the proposition that authority requires that an available defence be left to the jury, even where that defence potentially undermines the defence strategy.

Consideration

1. The duty of a trial judge in a criminal trial is to direct the jury in respect of the issues as they have been litigated by the parties: Alford v Magee (1952) 85 CLR 437; [1952] HCA 3. There is, however, an exception to that rule. It cannot now be doubted that the duty of a trial judge extends to directing the jury with respect to any defence or alternative verdict that is reasonably open on the evidence, notwithstanding that it has not been raised or relied on by the accused person. That has been the position at least since 1971 when, in Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20, Barwick CJ said: "Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part."
2. That proposition has been affirmed on many occasions: see, for example, Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21; Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15; Gillard v The Queen (2013) 219 CLR 1; [2003] HCA 64, and applied in this Court on numerous occasions: see, for example R v Mencarious [2008] NSWCCA 237, 189 A Crim R 219; R v Mulvihill [2016] NSWCCA 259; R v Lane [2013] NSWCCA 317; R v Flanagan [2013] NSWCCA 320.
3. The question has most frequently arisen in relation to charges of murder, where an alternative verdict of manslaughter might be available whether by reason of a defence such as self-defence or provocation, or because the evidence is susceptible of a verdict of manslaughter by criminal negligence or unlawful and dangerous act.
4. As stated in various of the decisions, the test is whether there is evidence that could support the defence or alternative verdict; that is, whether a case for an alternative verdict based on the evidence is viable.
5. Most recently, in James v The Queen (2014) 253 CLR 475; [2014] HCA 6 the High Court has re-affirmed the principle, although in circumstances that did not involve a charge of murder, but alternative charges (under Victorian law) of intentionally or recklessly causing serious injury. After being convicted of the more serious count, James complained that further alternatives, of intentionally or recklessly causing injury (as distinct from serious injury) ought to have been left to the jury. The High Court rejected that proposition, in conclusions that have no bearing on the present case. But French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ commented on matters that are presently relevant. Their Honours said: "31. Discharge of the trial judge's role in ensuring fairness to the accused requires that the jury receives instruction on any defence or partial defence, provided there is material raising it, regardless of the tactical decisions of counsel. Among other things, this recognises the forensic difficulty of relying on inconsistent defences. The tactical decision not to rely on a defence or partial defence, whether objectively sound or otherwise, does not relieve the trial judge of the obligation to instruct the jury on a view of the facts a defence or partial defence arises. 32. Of course, forensic considerations may equally be against defence counsel inviting the jury to consider the accused's guilt of a lesser offence. The submission may be inconsistent with the tenor of the defence case. Nonetheless fairness to the accused may require that the jury be directed of the availability of the alternative verdict. In such a case the failure to do so would be a miscarriage of justice."
6. That counsel may have adopted a strategy that might be damaged by proposing an alternative verdict does not relieve the trial judge of the obligation to direct the jury with respect to that alternative verdict, provided that it is "viable" on the evidence. Equally, it does not relieve counsel - either defence or prosecution - of the obligation to bring to the trial judge's attention any matters that ought to be the subject of direction. In this respect, their Honours said: "38. The trial judge's duty with respect to instruction on an alternative verdict is to be understood as an aspect of the duty to secure the fair trial of the accused. The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate courts assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel. As earlier noted, not infrequently defence counsel will decide not to sully the defence case (that the only proper verdict is one of outright acquittal) by an invitation to the jury to consider the accused's guilt of a lesser offence. Such a forensic choice does not prevent counsel from submitting that the alternative verdict should nonetheless be left. Much less does it prevent counsel from making that submission where, as here, he or she is asked about the matter. It remains that the forensic choices of counsel are not determinative. The duty to secure a fair trial rests with the trial judge and on occasions its discharge will require that an alternative verdict is left despite defence counsel's objections."
7. In this case, neither counsel drew the trial judge's attention to any question of an alternative verdict by reason of self-defence. Yet that defence had been raised by Wade Basanovic, partially successfully as it turned out.
8. It may be that the parties considered that, as it was common ground (and beyond question) that it was Wade Basanovic who fired the shots, a defence of self-defence presented a significant hurdle to Michael Basanovic. That hurdle was raised higher by his insistence that he had gone to the premises with a peaceful resolution of the tensions between himself and Mr Mitrovic in mind. The forensic difficulties in putting an alternative position, that included the prospect that he had believed that it was necessary to kill (or even seriously injure) Mr Mitrovic are obvious.
9. It is beyond question that the conduct constituting the offence that caused the death of Mr Mitrovic was that of Wade Basanovic in firing the pistol. In the circumstances of this case, Michael Basanovic could be held criminally responsible for that conduct only if it was committed in pursuance of a joint criminal enterprise. By its verdict, the jury accepted the Crown case that he was party to such an enterprise.
10. The cases referred to above establish that self-defence should have been left to the jury if there was evidence reasonably capable of supporting the proposition that Michael Basanovic participated in the shooting of Mr Mitrovic with the requisite state of mind. If there were evidence to support that proposition, the onus lay on the Crown to disprove all elements of self-defence.
11. By the application of s 418 of the Crimes Act, Wade Basanovic would not have been criminally responsible for the death of Mr Mitrovic if and only if he believed that shooting was necessary in order to defend himself or to defend Michael Basanovic, and the shooting was a reasonable response in the circumstances as he perceived them.
12. By the application of s 421, Wade Basanovic would be guilty of manslaughter if he had believed it was necessary to shoot at Mr Mitrovic in order to defend himself or Michael Basanovic, but the shooting was not a reasonable response in the circumstances as he perceived them.
13. It can be seen by the verdict of guilty of manslaughter, that the jury accepted that the Crown failed to prove that he did not have the requisite belief, but did prove that his response was not reasonable in the circumstances as he perceived them.
14. It is then necessary to consider the position in relation to Michael Basanovic. For either self-defence or excessive self-defence to be left to the jury there would need to be an evidentiary basis to establish (notwithstanding that he gave no evidence of any relevant belief) that Michael Basanovic believed that his conduct that constituted the offence was necessary to defend himself (there does not appear to be any basis for a case of defending another person).
15. That raises squarely the question of what is the conduct (of Michael Basanovic) "constituting the offence"? As in the case of Wade Basanovic, the "conduct constituting the offence" was the firing of the pistol. But that was not conduct carried out by Michael Basanovic: it was conduct for which he became criminally liable only by the application of the doctrine of joint criminal enterprise.
16. In the case of Michael Basanovic the jury could not get to the point of considering self-defence (or excessive self-defence) unless it first accepted the Crown case that he was party to a joint criminal enterprise with the stated object - killing or causing serious injury to Mr Mitrovic. As the trial judge correctly directed the jury, unless they were satisfied to the requisite standard of that fact, Michael Basanovic was entitled to be acquitted. Self-defence would not arise.
17. Joint criminal enterprise is, essentially, an agreement. Although it does not appear ever to have been spelled out with clarity, it seems that, on the Crown case, the agreement was made at some time prior to the excursion to Dynamic Transport. The trial judge directed the jury that the Crown alleged that the agreement was made no later than at the time Wade Basanovic telephoned Michael Basanovic from Dynamic Transport's yard. That of itself does not preclude a defence of self-defence in conjunction with joint criminal enterprise, although it may be supposed that, the further removed in time the agreement from the actual conduct constituting the offence, the more difficult it will be to persuade a jury that the conduct was a reasonable response (or, more accurately, the easier it will be for the Crown to disprove that).
18. The judgment of McHugh J in Osland throws some light on these difficult issues. In that case, a mother and son (David Albion) were alleged to have entered into an agreement to kill the mother's husband, the son's step father (Mr Osland). The son beat Mr Osland with an iron bar, causing his death. Mother and son were jointly tried for murder. Both pleaded self-defence, alleging years of violence and brutality by Mr Osland. That defence on the part of the mother was rejected by the jury and she was convicted of murder. The jury was unable to agree on a verdict for the son. He was subsequently tried by another jury and acquitted. The mother appealed to the High Court, claiming that the verdicts were inconsistent.
19. As indicated above, three of the five members of the court rejected that contention, expressing their reasons differently. McHugh J said: "128 …neither as a matter of law or logic is there any inconsistency in finding that David Albion was acting in self-defence or under provocation and at the same time acting pursuant to an understanding or arrangement. After all, the whole basis of their case was that they agreed to kill Frank Osland because that was the only way that they could defend themselves from the attack that they feared would kill one or both of them. … 129. Nor is there any inconsistency in the jury failing to agree on whether David Albion was acting in self-defence while convicting Mrs Osland. His act or acts are consistent with him acting in self-defence and in accordance with the agreement or understanding even though Mrs Osland was not acting in self-defence when she entered into the understanding and was present at the scene while David Albion struck the fatal blow or blows."
20. Further, although the Crown case appears to have been that the agreement was made at some time well in advance of the excursion to Dynamic Transport, that is not the only available hypothesis. The "nod" given by Michael Basanovic to Wade Basanovic (although disputed by both appellants) on which the Crown relied is capable of constituting an original, or a fresh, agreement, upon which Wade Basanovic acted out of a belief that, by that time, shooting was a necessary response to the aggression and threats of Mr Mitrovic. It is also capable of the interpretation that Michael Basanovic believed that it was, by that time, necessary to take drastic action to circumvent the aggression. On that basis, it was consistent with the belief that it was necessary to shoot at Mr Mitrovic. Such a belief is supportable by the detailed and consistent evidence of Mr Mitrovic's violent conduct, and threats made to Michael Basanovic.
21. The Crown relied on Michael Basanovic's evidence that he believed that, in the culture of outlaw motor cycle gangs, it was possible to pay money in order to avoid retaliation for breaches of club rules.The jury would, therefore, the argument ran, reject any suggestion that he believed that it was necessary to kill or inflict grievous bodily harm on Mr Mitrovic.
22. That may be a powerful factual argument to put before a jury in the event that self-defence is put. It is, however, premature to allow it to be used as a reason for not putting the defence in accordance with the principles and authorities discussed above.
23. Notwithstanding that Michael Basanovic gave no evidence of a belief in the necessity to shoot Mr Mitrovic, I am of the view that a jury could reasonably draw such an inference; once the evidence is capable of giving rise to such an inference, the onus is on the Crown to rebut it, and rebut the reasonableness of the conduct.
24. The decisions to which I have referred above, in these circumstances, required that questions of self-defence be left to the jury in Michael Basanovic's case. As those cases make clear, it is not to the point that he himself declined, (for apparently tactical reasons) to invoke the defence.
25. In my opinion, this Court is constrained to uphold these grounds of appeal and order that there be a new trial.

Ground 4: Unreasonable verdict

1. The test to be applied where a verdict of guilty is said to be unreasonable was stated by the High Court in M v the Queen (1994) 181 CLR 487 at 492; [1994] HCA 63 and has been restated on many occasions since: for example MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.
2. It is whether the court thinks that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused person was guilty. In applying that test the court is obliged to pay due regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the further consideration that the jury has had the benefit of having seen and heard the witnesses. The court must, nevertheless, make its own independent assessment of the evidence.
3. The argument propounded on behalf of Michael Basanovic under this ground was limited in its extent. It was expressly put as turning on: "44 …whether or not it can be established to the requisite standard [that] the appellant nodded to [Wade Basanovich] moments prior to the shooting." The nod was said to be "a crucial integer of the Crown case".
4. In other words, the submission was that, unless the court itself was satisfied beyond reasonable doubt that Michael Basanovic nodded to Wade Basanovic immediately before Wade Basanovic fired the gun, the evidence is inadequate to support a finding that there was a joint criminal enterprise to kill or seriously injure Mr Mitrovic.
5. It was pointed out that the evidence of the nod came only from Mr Bell, who was said to be unreliable and that, because the entirety of the episode in the office was video recorded, this Court is not in a position of disadvantage in making its own assessment.
6. In support of his characterisation of Mr Bell as an unreliable witness (at least with respect to the nod) senior counsel relied heavily on what he asserted to be discrepancies in accounts of the events given by Mr Bell. The evidence that there were such discrepancies emerged in a somewhat indirect way. In cross-examination by counsel for Michael Basanovic, Mr Bell agreed that, while he was still in hospital on 15 January, he took part in a video recorded interview with a police officer, and that, two days later he was shown the video recording and agreed that what he had there said was "true and correct". The point sought to be made was that, in the interview, he had made no mention of the nod; nor had he corrected that omission when subsequently shown the video.
7. He then agreed that, on 6 March 2015, he had made a statement at the Mt Druitt Police Station, in which he said: "At some stage the older guy and the younger guy switched positions. I saw the older guy look towards the younger guy and I saw the young guy had nodded his head towards the older guy." He affirmed that that was a true account "at that time".
8. It was put to him that he had "got it wrong" when he gave evidence in court that it was the older man (Michael Basanovic) who nodded to the younger man (Wade Basanovic). His answer was that he thought that he got it wrong when the statement was made; later, under further cross-examination, he suggested that it might have been the police officer taking the statement who "got it wrong".
9. For my part, while recognising that there are issues concerning Mr Bell's evidence, they are not such as to persuade me that it was not open to the jury to be satisfied beyond reasonable doubt that Michael Basanovic did nod to Wade Basanovic.
10. There are, however, other considerations. In his sentencing remarks, Davies J recorded that, having watched the video recording, he was not able to discern a nod; and he was not prepared to accept to the criminal standard Mr Bell's evidence that there was a nod. Such a finding by an experienced trial judge who had the benefit of observing Mr Bell is entitled to significant weight.
11. I should observe that I also have watched the video and, to my eyes, no nod is discernible.
12. There is a more fundamental reason why the attack on the credibility of Mr Bell ought not to be decisive of this ground of appeal. It was, in my opinion, incorrect to posit, as senior counsel did, that "the nod was a crucial integer of the Crown case".
13. There was a good deal of evidence from which the jury could properly infer that Michael Basanovic and Wade Basanovic had attended the premises in company with one another and others, anticipating a hostile encounter, and with the intention of responding to that hostile encounter with violence if necessary.
14. This is not to say that there are not question marks over the Crown case. Contrary to the Crown submission, there is much to be said for the argument advanced by trial counsel for Michael Basanovic, concerning the asserted implausibility of the scenario presented by the Crown (which I have twice set out above (at [47] and [75]), and forebear to repeat). Equally, there is an implausibility in the case advanced by and on behalf of Michael Basanovic, that he had travelled in convoy, unarmed and unaware that his son had armed himself, for a peaceful discussion with a man he knew to be violent and a killer, and who he claimed to have been told had offered $100,000 for his (Michael Basanovic's) own murder.
15. They are not issues to be resolved by an appellate court. They are not issues that are susceptible of a conclusion that it was not open to the jury to be satisfied beyond reasonable doubt that Michael Basanovic was party to a joint criminal enterprise.
16. Senior counsel also sought to compare the evidence against Michael Basanovic with the evidence against Brian Brown, which the trial judge held to be insufficient to go to the jury on the issue of joint criminal enterprise. That question is not material to the present argument. Whatever the reasons for directing a verdict in relation to Brian Brown, they have no bearing on whether the evidence was sufficient to support a verdict of guilty against Michael Basanovic.
17. I would reject this ground of appeal.

SENTENCE (Wade Basanovic)

1. As indicated above, Wade Basanovic was sentenced, on the count of intentionally causing grievous bodily harm, to imprisonment for 9 years and 4 months, made up of a non-parole period of 7 years and an additional term of 2 years and 4 months, commencing on 4 May 2013. On the manslaughter count he was sentenced to imprisonment for 11 years and 6 months, made up of a non-parole period of 8 years, with an additional term of 3 years and 6 months, commencing on 4 May 2016 (and therefore accumulated by 3 years on the earlier sentence). The overall sentence imposed was 14 years 6 months with a non-parole period of 11 years.
2. Only one ground of appeal was proposed in Wade Basanovic's application for leave to appeal against sentence. It was that, in sentencing, the judge failed to implement a stated intention to structure the sentence so that it conformed with the statutory proportions provided in s 44(2) of the Crimes (Sentencing Procedure) Act 1999. That section provides that, unless there are special circumstances warranting departure, the non-parole period of a sentence must be not less than 75% of the total sentence.
3. On behalf of Michael Basanovic no submission was made that relevant special circumstances existed, warranting departure from those proportions. Such a submission was made, but rejected, on behalf of Wade Basanovic. In each case, however, because he was sentencing for two offences with a degree of accumulation, the sentencing judge stated his intention of departing from the statutory ratio purely and expressly for the purpose of restoring that ratio in the overall sentence. Having regard to the argument advanced, it is necessary to set out with precision what the sentencing judge said in this respect. It was: "However, because of the accumulation of sentences for Wade I find special circumstances in relation to the manslaughter sentence simply to bring about the statutory ratio on the overall sentence. Similarly, I find special circumstances for Michael in relation to the sentence for murder to bring about the approximate statutory ratio on the overall sentence."
4. Those with an eye for detail will not have overlooked that, when referring to the sentence to be imposed on Wade Basanovic, his Honour's expressed intention was to "bring about the statutory ratio"; his expressed intention with respect to Michael Basanovic was "to bring about the approximate statutory ratio". In each case, the non-parole period of the sentence imposed was a little over 75% of the total sentence.
5. Counsel for Wade Basanovic placed considerable emphasis on the use by the sentencing judge, in the remarks of the word "approximate" in relation to Michael Basanovic and its omission in relation to Wade Basanovic, arguing that this must have been a deliberate and conscious point of differentiation. I do not agree. It is clear to me that his Honour intended to take the same approach in relation to each offender, and to sentence in round figures.
6. If my calculations are correct, the difference between the non-parole period actually imposed, and that that would have been imposed by the strict application of the s 44(2) proportions, is 53 days. Had his Honour's intention been as proposed by counsel, it would have to be concluded that he intended that the non-parole period to be imposed on Wade Basanovic was 10 years, less 53 days - that is, a non-parole period of 9 years, 10 months and 23 days. This is plainly not what his Honour intended.
7. I do not discount the argument of counsel that 53 days in custody is not insignificant. But that is not the point. The argument is that his Honour intended to take a different approach in relation to Wade Basanovic, and to impose a non-parole period that could have no rational explanation. That argument must fail.
8. The argument is so untenable that I would refuse leave to appeal against sentence.
9. The orders I propose are: Michael Basanovic:
10. Appeal against conviction upheld, conviction quashed.
11. There be a new trial. Wade Basanovic:
12. Appeal against conviction dismissed.
13. Leave to appeal against sentence refused.
14. BELLEW J: I agree with Simpson AJA.
15. WILSON J: I agree with Simpson AJA.

Amendments 22 September 2021 - Mr A Chhabra has been added to cover sheet as junior counsel to Mr T Game SC DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2021