R v Bentley; R v Davies; R v Thomas; R v Tilley

HIS HONOUR: At the close of the evidence, counsel for Mr Thomas asked for a direction to the jury on the issue of extreme provocation. All defence counsel ultimately joined in that application. It was opposed by the Crown.

The events that preceded the death of Brendan Vollmost included a journey from Daniel Gatt’s house at 121 Porpoise Crescent, Bligh Park through the streets of South Windsor to the home of Mr Vollmost at 79 Cox Street where he was killed. Two cars were involved in that journey. First, a white Holden Commodore station wagon driven by Ronald Byrnes and carrying Mr Vollmost as a passenger in the front seat and Brendan Knight seated behind him. Secondly, a white Hyundai i30 station wagon driven by Mr Thomas and carrying Mr Tilley in the front passenger seat and Mr Davies and Mr Bentley in the back. There is a factual dispute, not presently relevant, as to which back seats were occupied by Mr Davies and Mr Bentley.

The uncontested evidence reveals that during the drive back to 79 Cox Street, occupants of the vehicle driven by Mr Byrnes threw items such as tyre levers and a car jack and associated equipment from their car and either directly at the Hyundai making contact with it or into its path as it followed the Holden station wagon. There is evidence to suggest that Mr Vollmost threw items from the car in this fashion. There is also evidence that the two vehicles collided at a roundabout on the way to 79 Cox Street, although the precise circumstances of that collision are in contest. The evidence suggests that both vehicles were damaged in that collision but not to an extent that prevented both of them from being driven to 79 Cox Street or preventing the Hyundai from later driving from that address to an address some distance away adjacent to the Blue Mountains National Park where Mr Davies then lived.

Ms Carroll submitted that the throwing of items from the Holden station wagon constituted the commission by the occupants of the Holden, or at least for presently relevant purposes, by Mr Vollmost, of a serious indictable offence, namely in breach of s 49A of the Crimes Act 1900. That section provides as follows:

It is not in dispute that the actions of Mr Vollmost in throwing items from the Holden could arguably amount to the commission by him of a serious indictable offence.

Ms Carroll contended that the jury should be directed that Mr Vollmost’s acts could amount to extreme provocation so as to give rise to a partial defence in accordance with s 23(2) of the Crimes Act. That section is in the following terms:

Ms Carroll contended that the act that caused Mr Vollmost’s death was done in response to extreme provocation in that the act of the accused that caused his death was in response to Mr Vollmost’s conduct towards or affecting the accused and caused the accused to lose self-control where that conduct could have caused an ordinary person to lose self-control to the extent of intending to inflict grievous bodily harm upon Mr Vollmost.

The authorities make it clear that before a jury can be directed in this manner, there must at least be evidence that the act that caused the death of the deceased person was the result of the loss of self-control caused by the deceased. For example, in Mulvihill v R [2016] NSWCCA 259 at [124] and [125], the Court said this:

See also Peisley v R (1990) 54 A Crim R 42 at 47 per Wood J (as he then was).

The evidence in this trial included evidence from Mr Bentley that he committed the physical acts that caused Mr Vollmost’s death. He described how he struck Mr Vollmost with a metal object that he located on a couch in the shed where the death occurred, that he punched him twice with his right fist and that he kicked Mr Vollmost in the head when he was thereafter in a kneeling position beside or at the far end of the couch.

The Crown case is that the accused are all guilty of murder in these circumstances even though none of the others physically contributed to the infliction of Mr Vollmost’s fatal injuries or indeed to the infliction of any injuries at all.

Mr Bentley’s actions are therefore the acts which must be assessed in the context of whether or not they were committed or performed as the result of his loss of self-control. The fact that the other accused are alleged to be liable for his acts as the result of a joint criminal enterprise upon which they had all embarked does not in this case give rise to a relevant consideration of the issue of the loss of self-control on the part of any of the other three accused. That is because there is no evidence of any such loss of self-control by the other three accused.

For example, Mr Bentley gave evidence that he went up the driveway at 79 Cox Street with Mr Davies in order to assist him in what he understood was Mr Davies’ intention to speak to Mr Vollmost. He said on several occasions that he went there in order “to pull him [that is, Mr Vollmost] up”. His evidence was moreover to the emphatic effect that he did not attend the premises, or follow Mr Vollmost back there, in order to harm him or physically confront him in any way whatsoever. Critically for present purposes in my view is the fact that Mr Bentley at no time in his evidence either hinted or suggested, far less described in terms, that anything he did to cause Mr Vollmost’s death was the result of any loss of self-control on his part. Indeed, Mr Bentley graphically indicated in his evidence that at the entrance to the shed he momentarily paused before entering, an act of circumspection that seems wholly inconsistent with being overpowered by passion or hot blood.

If that were not alone sufficient, it is also important to observe that in the course of his detailed description of what was taking place in the Hyundai on the journey from Porpoise Crescent to Cox Street, Mr Bentley never once suggested that he was angered or inflamed by the fact that items were being thrown from the Holden or that he, or anyone else in the car for that matter, assuming it to be relevant, was losing or had lost self-control. Mr Bentley was, on the contrary, at pains in his evidence to emphasise that the Hyundai followed Mr Vollmost to 79 Cox Street for the sole purpose of pulling him up, by which he meant, to speak to him or to have a discussion with him. Mr Bentley’s evidence included the following:

I also observe that none of Mr Bentley’s co-accused cross-examined him in a way to suggest that either he or, to the extent that it were relevant, anyone else in the car, had lost or appeared to have lost self-control in the circumstances that included the throwing of items from the Holden station wagon.

As was the precise case in Mulvihill v R, Mr Bentley’s evidence was inconsistent with him experiencing a loss of self-control and there was no other evidence capable of supporting such a conclusion. I am reminded of the words of Wood J in Peisley v R at 48:

The circumstances of the present case are far removed from any such indications. Mr Bentley’s evidence did not even approach a suggestion that he had lost self-control. His evidence is entirely to the contrary. There is no other evidence to support the contention that he had lost self-control when he killed Mr Vollmost.

I do not consider that the direction sought should be given.