R. v. Josipovic, 2013 ONSC 7927

CITATION : R. v. Josipovic, 2013 ONSC 7927 COURT FILE NO.: 13-4422 DATE: 2013-12-23 SUPERIOR COURT OF JUSTICE - ONTARIO RE: R. v. Mato Josipovic and John Josipovic BEFORE: Mr Justice Ramsay COUNSEL: S. O’Brien and C. Fraser for the Crown J. Manishen and S. Kim for Mato Josipovic M. O’Brien for John Josipovic HEARD: December 18-20, 2013 Publication ban: The contents of this endorsement are subject to a temporary publication ban made under s.517 of the Criminal Code .

ENDORSEMENT [ 1 ] Mato Josipovic (“Mike”) and John Josipovic (“John”), two brothers, are charged jointly with the first degree murder of James Louis Malone. They apply for judicial interim release under s.522 of the Criminal Code . [ 2 ] Malone was a local gangster. Both accused knew him from their school days. Malone was a former or current Hell’s Angel with a criminal record for assault and conspiracy to traffic in narcotics. At 12:36 am on November 9, 2013 security video recorded Mike Josipovic entering Main Street Billiards. He went up to Malone and the men greeted each other with a hug.

A few minutes later the two men left. Security video then shows them at Mike’s pickup truck. Malone and another man assaulted Mike, who ran away. Malone then stole Mike’s truck. There is no credible information about the cause of the fight, but why would Malone take his associate’s truck? The most obvious reason would be that Malone thought that Mike owed him money. [ 3 ] After the assault on Mike, security video records him on his cell phone at a near by 7-11 store. His telephone records show him having an 8 minute conversation with Malone. Then he makes a number of calls to John.

Over the next few minutes, John’s cell phone uses towers that show a route of travel from Grimsby to east end Hamilton. Malone lived in that area and shortly after 1 am he left his residence to take his dogs for a walk. At about a quarter past one a number of Malone’s neighbours called police to report two men in a pickup truck chasing and shooting at another man who was on foot. One neighbour’s window was shot out.

Eyewitnesses saw one man get out of the truck, chase the man down, beat him unconscious with the butt of a shotgun, and then apply the coup de grace in the form of a shotgun blast to the back of the head. The man was Malone. One witness got the licence number of the pickup truck. It was very close to John’s. At 7 o’clock in the morning, John was observed tending a big fire in the fire pit at his house. Remnants of clothing were found in the ashes. John’s truck was seized. Blood was found on the front bumper and hood. The blood’s DNA matches Malone’s at STR 15 loci.

The random match probability is 1 in 170 quadrillion. [ 4 ] Mike Josipovic offers his wife and her sister as sureties. The sister, Sonya Mainprize, is married to Dean Patterson, described by Mike in 2008 as “a good man with a coke problem.” In March 2008 Patterson assaulted Ms Mainprize and was remanded in custody as a result. Ms Mainprize told the police that Patterson’s .38 calibre revolver was missing. Eventually Patterson agreed to tell the police where it was, in his toolbox at work. But it was not there. Mike had it. He turned it over to the police, saying that he meant to do so all along.

His only concern in taking it, he says, had been his sister’s safety. I doubt that. I think he was also concerned about the penal consequences for Patterson. Otherwise, he would simply have called the police. The firearm was a stolen firearm, so the consequences for Patterson could have been significant. [ 5 ] John Josipovic offers his wife as a surety. [ 6 ] Both applicants offer the following family members as sureties: a. Their parents, who own a $900,000 farm and a $450,000 residential rental property. b.

Their sister Jadranka James, who owns a residence worth $450,000 that is subject to a mortgage in the amount of $150,000. c. Their sister Nancy Mackay and her husband George, who own real property in Texas, where they reside, and in Ontario. [ 7 ] I do not think that the MacKays would make suitable sureties. They are too far away to offer any supervision and enforcement of the bond would be impractical. [ 8 ] Mike Josipovic is a forklift operator. He lives in a $600,000 property with a $150,000 mortgage and he owns a barber shop in which he does not work.

He says that he has been working on opening a screen printing business. [ 9 ] Mike Josipovic is almost 47 years old. He has been convicted of offences for which he received a pardon. His last conviction was probably about 20 years ago. I think that he still has criminal associations for the following reasons.

a. He was associated in some sort of business dealings with the victim, who was a criminal, and it was not the sort of business in which debts are recovered by lawsuits. b. In 2011, two Hell’s Angels extorted a Hamilton bar owner on behalf of a business rival. Telephone records suggest that Mike Josipovic was the go-between who arranged the extortion for the rival. He was never charged and he denied that he was involved.

The evidence may not have been enough to establish his guilt beyond a reasonable doubt, but to me his involvement is probable. [ 10 ] John Josipovic has not had any criminal convictions since 1991. He is, however, a close associate of Mike. John operates heavy machinery and runs a landscaping and snow ploughing business. He makes $60,000 to $80,000 a year. His wife is a part-time caretaker at Grimsby High School. They live on a 10-acre property next to Mike’s property. Their property is farmed by a local farmer. [ 11 ] Both brothers filed character reference letters.

In the light of the other evidence, I infer that they have kept their honest lives and their criminal lives separate. [ 12 ] The Crown has an overwhelming circumstantial case identifying the applicants as the perpetrators of the offence. The probability of conviction is high. The surety offered, generous in amount as it is, is not a sufficient incentive for these less than respectable citizens to appear for trial with or without the McKays’ contribution. [ 13 ] The proposed bondsmen from the extended family do not have the ability to supervise the activities of these men.

The wives as bondsmen would have no interest in turning in their husbands for a breach of bail. For them to do so would require an extremely difficult act of altruism. [ 14 ] The 2011 extortion incident and the video footage of the dealings with Malone show that Mike has links to the criminal underworld, where obstruction of justice is a tool of the trade. The 2008 gun incident suggests to me that Mike personally is no stranger to obstruction of justice. And obviously, John is no stranger to Mike.

I conclude that their detention is also necessary because of a substantial risk of interference with the administration of justice. [ 15 ] I need not say much more about the tertiary ground. Considering the DNA evidence in conjunction with the bold, brutal and public nature of the crime involving the endangerment of bystanders by gunshots, it seems to me that this is one of the relatively rare cases in which detention is also necessary to maintain confidence in the administration of justice. It is more than just a strong case on a serious charge. [ 16 ] The application for bail is denied.

The non-communication orders made by the justice of the peace stand. J.A. Ramsay J. Date: 2013-12-23