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

HIS HONOUR: Jordan Ferguson will shortly give evidence. On 7 September, 2015 he prepared a statement at the Windsor Police Station. Paragraph 19 of that statement is in the following terms:

Mr Ferguson and Mitchell Bentley are cousins.

Apart from some matters in that paragraph that may be the subject of objection as to form and the like, I anticipate that Mr Ferguson will be able to give the significant elements of that evidence without difficulty.

The Crown wishes also to tender some of a series of text messages passing between Mitchell Bentley and Mr Ferguson on 23 July 2015. In the first relevant text message Mr Ferguson asks Mr Bentley: "Is that y oldmate got in trouble owe u coin". Approximately a minute later Mr Bentley's telephone sends a text message to Mr Ferguson in the following terms: "Not being rude bro but under no circumstances ever bring that up again." A few minutes later, Mr Ferguson responds, after the interposition of a few other messages that are not presently relevant, saying: "Sory bro, thought these were safe, all good, never a word again".

Objection is taken to the Crown's proposal to lead that material. Put in context, the Crown contends, alike with the subject matter of paragraph 19 to which I have just referred, that the topic of those text messages was in fact the deceased Brendan Vollmost.

It is uncontroversial that Mr Ferguson could not give evidence that it was his belief that that was what Mr Bentley was talking about, or understood the text messages to concern. Further, the text messages do not in terms, or on one view by necessary implication, identify Mr Vollmost as the subject matter of the messages in question.

The Crown contends that the jury might reasonably infer, presumably from other evidence, including the material referred to in paragraph 19 of Mr Ferguson's statement, that Mr Vollmost was indeed the subject matter of the conversation, or more particularly, his disappearance on 31 March 2015.

There can be little doubt that if Mr Bentley had accepted the proposition that the subject matter of the texts was Mr Vollmost, or could in some indirect way be shown to have adopted that as a fact, the text messages would be uncontroversially admissible.

Mr Trevallion points out, amongst other things, that the literal words of the texts in question do not identify the disappearance of Mr Vollmost as their subject matter, and that on one view more than one inference about what the subject matter might be could arise. His concern is that the admission of the text messages in those circumstances would create an unfair and irreparable prejudice to the extent that the jury might, having regard to extraneous but not necessarily related material, inappropriately reason that the text messages were referring to Mr Vollmost, when no material supporting that to any acceptable standard on this argument could be said to exist.

Even though the jury will in due course be asked to apply their common sense to the evidence, including, if admitted, these text messages, I am troubled that there is a chance that the application of common sense could be confused, or conflated, with speculation about the content of the subject matter of the text messages.

Whereas I am untroubled by the content of paragraph 19 of Mr Ferguson's statement, I think there is a risk of unfair prejudice if the text messages as identified are led, and I would reject the Crown's application to do so.