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

HIS HONOUR: The Crown alleges that the accused murdered Brendan Vollmost on 31 March 2015 at 79 Cox Street, South Windsor and thereafter disposed of his body. Evidence upon which the Crown relies includes CCTV material from that address which shows the accused, among other things, carrying Mr Vollmost from a shed at the rear of the premises and into a waiting white Hyundai station wagon that then drives from the scene. It is unremarkable that the police investigation that followed these events included significant, but ultimately unsuccessful, efforts to locate both Mr Vollmost and that car.

The Crown case closed shortly after the luncheon adjournment on Tuesday 27 February 2018. The accused Mr Davies then entered the witness box and gave evidence. The Crown commenced to cross-examine Mr Davies at approximately 3.40pm until the matter was adjourned for the day at 4.00pm.

Part of the evidence given by Mr Davies in chief included the fact that he had disposed of the body of the deceased within a metal toolbox by depositing it along with some of the remnants of the now dismantled or disassembled Hyundai motor vehicle at a car wrecker’s yard in Penrith. The fact that Mr Davies, or indeed any of the accused, had made an admission that he had disposed of Mr Vollmost’s body was, in the context of the evidence heard so far, not particularly exceptional or unexpected. Mr Davies had by then already given evidence that he had been present at 79 Cox Street when Mr Vollmost was violently assaulted. It remains to be seen whether he died at that location or elsewhere. There had appeared to be no dispute that Mr Vollmost was dead, having regard to the fact that he has not been seen or heard from since 31 March 2015. Mr Davies’ evidence confirmed that reasonable expectation. Mr Davies’ evidence also confirmed that he would contend that Mr Vollmost was killed in the course of an act of self-defence, when Mr Vollmost unexpectedly produced a sawn off shotgun, to which the attack upon him is said by the defence to have been a proportionate response. That issue remains alive in these proceedings.

Mr Davies’ evidence also relevantly included the following material:

The burden of this evidence is that Mr Vollmost’s body was put inside a metal toolbox that was itself placed within a discarded motor vehicle at the wrecker’s yard and mingled with other material in the form of metal car parts that were then observed by Mr Davies to have been crushed by some machine or implement in use at that business. These events are alleged by Mr Davies to have occurred in early April 2015 but no earlier than 2 April 2015. These dates become important in what follows.

Upon resumption of the trial at 10.00am on 28 February 2018, the Crown indicated that it wished to raise an important and potentially significant legal issue. That issue arose in these circumstances. After Mr Davies’ evidence, the officers in charge of the criminal investigation reviewed all of the material that had been assembled in the course of the investigation. It transpires that the police had in fact obtained CCTV footage from a car wrecking yard in Penrith which depicted Mr Davies and an as yet unidentified accomplice driving into the yard in a white Holden utility pulling a trailer with a wire cage. That vehicle and trailer clearly make two visits to the yard on 2 April and 4 April 2015. On each occasion they arrive loaded with car parts that are consistent with parts from a disassembled white Hyundai station wagon. A definite identification of the Hyundai is not possible from anything revealed in the CCTV video.

Significantly for present purposes, Mr Davies is shown walking up from and back to the Holden utility along the wrecking yard driveway. There appears to be no dispute that Mr Davies is the individual depicted in the video.

In the events that have occurred, the Holden utility in question has been the subject of other arguably critical evidence in the Crown case. The Crown alleges that Mr Davies drove that vehicle to Dorrigo on 1 April 2015 with Mr Tilley as his passenger. The Crown will contend that Mr Vollmost’s body was taken in the covered tray of the utility to a remote location in the Dorrigo area for disposal. The Crown has photographic evidence of the vehicle and other evidence confirming that Mr Davies and Mr Tilley made such a journey.

In this last respect, Mr Davies gave evidence in which he agreed that he took the white Holden utility to Dorrigo on 1 April 2015. His evidence, however, was that he made that trip for the purpose of disposing of items that were potentially capable of incriminating him and others of the accused in unrelated offences such as cultivating prohibited plants. Mr Davies specifically denied that Mr Vollmost’s body was secreted in the vehicle or that it was disposed of in the Dorrigo area. He maintained that the body was disposed of in the days that followed in the way already described.

The issue that arises for present purposes derives from the fact that the Crown did not serve the CCTV footage from the wrecking yard as part of the Crown brief. It appears that the potential significance of this material was not recognised or appreciated by the Crown until Mr Davies’ somewhat remarkable and undoubtedly unexpected revelation that he disposed of the body in the way he described. That is so notwithstanding that the white Holden utility had long ago become a central item in the Crown case theory, specifically, that it was used to dispose of Mr Vollmost’s body in the Dorrigo area, and that it was thoroughly cleaned by some of the accused thereafter to remove traces of that fact. Despite the oversight, the Crown has now applied for leave to cross-examine Mr Davies about this CCTV material and what it reveals and to lead evidence, if thought necessary, in reply by tendering the video itself and possibly also calling evidence from a person employed at the wrecking yard at the time of Mr Davies’ visit.

That application is opposed. Mr Young of senior counsel for Mr Davies argues that the CCTV material should have been served as part of the Crown brief in accordance with well-established principles. These are referred to below.

Mr Young’s argument is founded upon a contention that Mr Davies’ decision to give evidence in this trial must be taken to have been influenced, at least in part, by the state of the evidence at the close of the Crown case. As will be apparent, that evidence did not include the CCTV footage of the events at the car wrecking yard. Accordingly, Mr Davies, on this analysis, chose to explain how he disposed of Mr Vollmost’s body without obvious or apparent fear of contradiction from any source such as the CCTV footage in question. It is reasonably available as an inference, although not explicitly submitted, that Mr Davies may have chosen either not to give evidence at all, or alternatively, to give different evidence, if the Crown had served and relied upon the video from the car wrecking yard. It is implicit in this analysis that Mr Davies accepts, or that he acknowledges the very distinct prospect, that if admitted into evidence the CCTV footage will convincingly, or at the very least arguably, demonstrate that his evidence of taking and disposing of a large metal toolbox on either of his visits to the yard is patently false.

Mr Young maintains that the admission of the evidence, either in cross-examination of Mr Davies or the tender of the material in reply, will create an irremediable and unfair prejudice to all of the accused. Simply stated, that unfair prejudice consists in the fact that Mr Davies has made a decision to give evidence based upon an assumption about the state of the Crown case that would turn out to be ill founded if the evidence in question were adduced. Mr Young makes that submission even notwithstanding the fact, on one view, that Mr Davies must have deliberately chosen to give false evidence about an issue, being the method and whereabouts of the disposal of Mr Vollmost’s body, which he knew by then was a live and central issue in the proceedings.

An examination of the forensic balance in these circumstances suggests that the evidence that the Crown now wishes to introduce is predominantly, if not in fact exclusively, concerned with Mr Davies’ credibility. That is for the reason that the fact of Mr Vollmost’s death was on the one hand not otherwise likely to be a difficult issue for the Crown to establish having regard to his disappearance without trace, and to the now undisputed fact that he is dead in the light of Mr Davies’ evidence on the other hand. The question of precisely how the accused may have disposed of Mr Vollmost’s body has no direct relevance to the factual material upon which the charges of specially aggravated kidnapping and murder depend. For example, Mr Davies’ concession that the accused disposed of the body is significant, whereas the location of that disposal is not.

In terms of credibility, however, the situation is different. The Crown contends that the CCTV material demonstrates that Mr Davies should not be believed so that, significantly for the Crown case, he should be disbelieved in his evidence that Mr Vollmost was armed with a shotgun at the time he was killed or assaulted. Conversely, Mr Davies maintains that his credibility on that issue is critical to the accused’s defence of the Crown case, and that it would be fundamentally weakened by evidence that the Crown should have served and which would have materially affected or influenced Mr Davies’ decisions both to give evidence in the first place and the content of that evidence in the second place.

Section 141 of the Criminal Procedure Act 1986 provides as follows:

Section 142(1) of that Act is in these terms:

It will be apparent that, whatever other specific category the CCTV footage may be caught by, it should have been provided to the accused at least as information provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused. In this last respect the accused contend that the whereabouts of the white Hyundai station wagon has always been central and therefore relevant, along with the whereabouts of Mr Vollmost himself, to the prosecution case. The activities at the car wrecking yard have also not otherwise been disclosed.

Apart from the question of whether the Crown should be permitted to cross-examine Mr Davies about what the CCTV footage reveals, he opposes the Crown’s application to lead the same material in reply.

Section 146 of the Act provides relevantly as follows:

The Crown relies upon R v Spiteri (2004) 61 NSWLR 369; [2004] NSWSC 321 and the cases therein cited. In particular, the following passages have been emphasised:

In my opinion, the present case is materially different. The manner and location of the disposal of Mr Vollmost’s body and the white Hyundai station wagon were at all times central to the police investigation and to the Crown case. The officer in charge of the investigation gave evidence on the voir dire that the significance of the CCTV material was not appreciated until Mr Davies gave the evidence referred to above. That is not an extraordinary revelation in the circumstances: it is important not to assess too critically the activities of the police in retrospect when the content of Mr Davies’ evidence was not known in advance and when it could not in detail have been predicted. However, even if the CCTV material may not have led those investigating the activities of the accused to an immediate appreciation of the significance of the Holden utility at the wrecker’s yard, the clear vision of Mr Davies himself at that location should in my view have alerted the Crown to its potential importance. That is so in light of other evidence on the voir dire that makes it clear that the police had been following, as early as April 2015, the possibility that the Hyundai may have been disposed of in the way that it was. More than one wrecking yard was approached with this line of inquiry in mind. The clear presence of Mr Davies in a direct physical connection with a utility and trailer containing white car body panels should have underscored the potential significance of what the CCTV footage exposed. Indeed, the evidence from the officer in charge of the investigation was that the trailer was recovered by the police and forensically examined.

In my opinion it would now be unfair to permit the Crown to cross-examine Mr Davies about the apparent and obvious discrepancies between his evidence and the CCTV material or to permit the Crown to lead the CCTV material in a case in reply.

The situation would appear to be fundamentally different with respect to evidence concerned with the question of whether or not the particular car wrecking yard to which Mr Davies took the white Hyundai had facilities for the crushing of vehicles in the manner that he briefly described in his evidence. In the short time available since Mr Davies gave his evidence, the Crown has managed to obtain a draft statement from Mohammad Weja dated 28 February 2018. Mr Weja is one of the proprietors of Metalone Recycling in Penrith. I anticipate that it will be contended that this is the yard to which Mr Davies took the Hyundai for disposal. Paragraph 8 of that statement is as follows:

I have not yet had the opportunity to hear argument on the Crown’s foreshadowed application to lead this or similar evidence. I anticipate that the Crown will contend that this material differs significantly from the other evidence inasmuch as Mr Davies’ evidence about the extent of the available crushing facilities could never have been anticipated and accordingly would never have been expected to form any part of the Crown brief. For example, a description of the Metalone Recycling business would not have included any characteristics that it did not actually possess. On the Crown’s anticipated argument, Mr Davies’ lies on this topic permissibly raise the opportunity for the Crown to cross-examine him and if necessary to lead evidence in reply to rebut what was clearly an unexpected and unpredictable factual assertion that has arisen in the course of his evidence. The extent to which that anticipated approach by the Crown is to be challenged by the accused remains to be seen and should at least await the production of a duly executed statement by Mr Weja. As presently advised, it is difficult to understand how Mr Davies’ curious assertions about crushing facilities at the recycling centre could or ought to have been foreseen by the Crown. This has now become an issue but only as the result of Mr Davies’ own evidence and not otherwise.

Accordingly I make the following orders: