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

1. [1]

   HIS HONOUR: The Crown has given notice of an intention to adduce evidence of tendency pursuant to s 97(1) of the Evidence Act 1995. The tendency sought to be proved is the tendency of the three accused Bentley, Tilley and Davies to act in a particular way, namely, to use violence, or the threat of violence, to collect drug debts or otherwise advance a drug supply business. A fourth accused Thomas is not the subject of a tendency notice. However, he seeks a separate trial if the Crown is permitted to adduce the tendency evidence or any of it.

2. [2]

   The four accused are all indicted on charges that on or about 31 March 2015 at South Windsor in the State of New South Wales, while in the company of each other, they took and detained Brendan Vollmost without his consent with intent to obtain an advantage, namely financial and psychological advantage, and at the time of doing so actual bodily harm was occasioned to him. The four accused are also charged that in the same circumstances they did murder Mr Vollmost. The indictment contains other charges as well, to which it is presently unnecessary to refer.

3. [3]

   The presently relevant sections of the Crown case statement are as follows.

4. [4]

   The Crown has helpfully organised the evidence that it proposes to adduce into eight categories. Category five is no longer pressed. Not all of the evidence that the Crown proposes to adduce is to be led against all of the accused. This is made plain in what follows.

Category 1 - all accused

1. [5]

   The proposed evidence in this category consists of selected portions of statements given to the Crown by a series of witnesses. It becomes necessary to set this material out in full.

Category 2 - Tilley

1. [6]

   The proposed evidence in this category consists of selected portions of two statements given to the Crown by two witnesses. Although the Crown has nominated the whole of these statements, not all of the material is relevant to the tendency issue. Doing the best I can it seems to me that the following extracts adequately reflect the Crown’s concerns.

Category 3 – Tilley and Bentley

1. [7]

   The material in this category consists of an extract from a listening device transcript recorded on 7 June 2015 of a conversation between Mr Tilley and Mr Bentley. The portion relied upon by the Crown includes the following:

Category 4 – Tilley, Bentley and Thomas

1. [8]

   The material in this category consists of an extract from a listening device transcript recorded on 19 June 2015 of a conversation among Mr Tilley, Mr Bentley and Mr Thomas. The portion relied upon by the Crown includes the following words spoken by Mr Bentley:

Category 6 - Bentley

1. [9]

   The material in this category consists of a series of text messages sent by Mr Bentley to two people on eight separate occasions between 23 July 2015 and 28 July 2015. The last item consists of Mr Bentley sending a picture of a tattoo on his left calf on 17 August 2015. The text of the eight sms messages are as follows:

Category 7 - Bentley

1. [10]

   This category consists of the whole of a single statement dated 14 October 2016 given to the police by Grant McDonald. No attempt has been made to limit or refine the parts of this statement that the Crown contends could qualify as tendency evidence. The only material in the statement that appears even remotely to be relevant to the present inquiry are the following paragraphs:

2. [11]

   This category also includes the last three text messages listed in the previous category.

Category 8 - Bentley

1. [12]

   The material in this category consists of a picture of a tattoo on Mr Bentley’s left calf. It depicts an image of four hooded men in various poses holding firearms. Written above these figures are the words “When it’s about our family”. Below these figures the wording continues saying “We are ready for WAR”.

Applicable legal principles

1. [13]

   Section 97 of the Evidence Act provides as follows:

2. [14]

   Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of a fact in issue to a significant extent: Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20 at [16] per Kiefel CJ, Bell, Keane and Edelman JJ citing IMM v The Queen (2016) 267 CLR 300; [2016] HCA 14 at [46] per French CJ, Kiefel, Bell and Keane JJ.

3. [15]

   Striking similarity is not a necessary pre-condition for admissibility. Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear a similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the Court’s assessment of operative features of similarity with the conduct in issue: Hughes v The Queen at [39]. Nor do the acts relied upon need to be rare or unusual: see Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [87] quoting R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 at [126]; BC v R [2015] NSWCCA 327 at [99].

4. [16]

   It is clear, as in Hughes itself, that tendency evidence can be admitted in circumstances where the evidence bears similarities and dissimilarities to the conduct the subject of the charges. Much will depend on what the dissimilarities relate to.

5. [17]

   In Hughes at [39] the following appears:

6. [18]

   It is also well established that when assessing probative value, the Court should not look at an individual item of tendency evidence in isolation. The Court should have regard to all of the evidence sought to be adduced by the Crown. This flows from the terms of s 97 itself which contemplates that the court will have regard to “other evidence adduced or to be adduced” by the party seeking to tender the evidence: see too BC v R at [82] per Beech-Jones J; R v Maybir (No.7) [2015] NSWSC 1742 at [19] per RA Hulme J.

7. [19]

   The significance of the probative value of the tendency evidence must depend on the nature of the facts in issue to which the tendency evidence is relevant, and the significance or importance which that evidence may have in establishing those facts. The evidence must be influential in the context of fact finding: IMM v The Queen at [46].

8. [20]

   Probative value is defined in the Dictionary to the Evidence Act as “the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue”. It follows that, generally speaking, it is no part of the Court’s function to assess the credibility or reliability of the evidence. This is the province of the jury: R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 at [60]; DSJ v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9 at [56]; R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121; R v Meyn (No.2) [2012] NSWSC 1449 at [7] per Beech-Jones J. The Court should take the evidence at its highest: IMM v The Queen at [43], [52].

9. [21]

   However, there may be “a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury”. In such a case “its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance”: IMM v The Queen at [39].

10. [22]

    In IMM v The Queen, French CJ, Kiefel, Bell and Keane JJ said at [46]:

11. [23]

    In Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 at [76] per Sackville J (with whom Whitlam and Mansfield JJ agreed) said:

12. [24]

    A matter that is relevant to the strength of the tendency inference that can be drawn from the evidence is the generality of the alleged tendency evidence. In El Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [72], Leeming JA said:

13. [25]

    In Sokolowskyj v R [2014] NSWCCA 55 at [41]–[42], Hoeben CJ at CL (with whom Adams and Hall JJ agreed) said:

14. [26]

    Section 101 of the Evidence Act provides as follows:

15. [27]

    The concept of “prejudicial effect” is to be understood in substantially the same way as “unfair prejudice” as the latter term is used in s 137, namely that there is a risk that the evidence will be misused by the jury in an unfair manner: Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 at [192]: R v Ford at [55] and Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [57].

16. [28]

    The unfair prejudice is not that the evidence is harmful to the interests of the accused because it tends to establish the Crown case. If that were so, then the more powerful evidence was in showing the guilt of the accused, the greater would be the difficulty of the Crown in putting the evidence before the jury. Rather, the unfair prejudice referred to in s 137 is harm to the interests of the accused that is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way: R v Ford at [56].

17. [29]

    It is legitimate and appropriate to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect: Hughes v R at [192] citing Dao v R [2011] NSWCCA 63 at [171] per Simpson J.

18. [30]

    It is not improper, and thus not prejudicial, for a jury to reason that if the accused has demonstrated the alleged tendency he or she is more likely to have committed the offences alleged. On the contrary, this is the very reasoning that underpins tendency evidence and the very basis upon which it is admitted: BC v R at [81] per Beech-Jones J.

19. [31]

    Further, in most cases, provided s 97(1)(b) is satisfied, it is to be expected that the risk that the jury would be “emotionally affected” by the evidence of other conduct such that they would disregard the accused’s version of events and not afford the accused the benefit of any reasonable doubt, can be accommodated by giving appropriate directions to the jury: BC v R at [81] per Beech-Jones J.

20. [32]

    As Latham J said in SK v R [2011] NSWCCA 292 at [34]:

Crown case theory

1. [33]

   The Crown case is that the four accused were a close knit group. They considered themselves to be family. They had formerly been part of a group called the “Blood Brothers”, but shortly before Mr Vollmost’s abduction, had broken away from this group (although they continued to refer to themselves as the Blood Brothers for a period of time in furtherance of their drug supply business). The Crown will maintain that the accused were drug dealers in the Hawkesbury region, with the ambition to take over the supply of drugs there. The four accused had a hierarchy which was denoted by nicknames that they gave each other. Mr Tilley considered himself to be the head of the family and used the nickname “Coach”. Mr Davies was the second in charge and used the nickname “Captain”. Mr Thomas was next in line and used the nickname “Medium” and also sometimes referred to himself as “Walters”. Finally, Mr Bentley used the nickname “Smallzy” and sometimes “Smokey”.

2. [34]

   The business of the accused included supplying other lower level suppliers with the drug ice. The accused wished to ensure that low level drug dealers used them as their source of supply, including supplying drugs on credit. A necessary part of the business was collecting debts when owed. This required, where necessary, violence or the threat of violence in both actually collecting the money and also in maintaining their status in the community as the drug dealers who were running the Hawkesbury region. Even what might seem to be relatively low level debts required the accused to take extreme measures to enforce those debts for both purposes.

3. [35]

   The Crown case is that, as at 31 March 2015, the accused had been looking for the deceased for some time in relation to a drug debt. They found him and they pursued him in motor vehicles. They were the aggressors. During the pursuit they rammed the car conveying him. They were intent on violently assaulting him.

4. [36]

   The Crown alleges that the action taken by the accused in respect of Mr Vollmost on 31 March 2015 can only be understood against the background relating to the nature of their drug business.

Consideration

1. [37]

   It is convenient to continue to consider the Crown’s application in the identified categories to which earlier reference has been made.

2. [38]

   The Crown contends that all of the evidence in this category has significant probative value because it demonstrates the tendency of Messrs Tilley, Davies and Bentley to use violence or threats of violence in combination to enforce drug debts or otherwise to advance their drug supply operation. The Crown submits that the violence which it alleges was directed towards Mr Vollmost on 31 March 2015, commencing with the car chase and thereafter, is rendered more likely by the evidence sought to be adduced. Striking similarity is not required but the Crown highlights the following similarities with the pursuit of Mr Moerig:

3. [39]

   The Crown maintains that the Caltex service station incident, relied upon with respect to Messrs Davies and Bentley, is of significant probative value because it is evidence of what amounts to a threat to kill Mr Moerig and then dispose of his body. That is precisely what the Crown contends occurred in this case.

4. [40]

   In my opinion, the evidence which the Crown proposes to adduce does not have significant probative value. None of the material involves violence and none of it demonstrates a tendency for actual violence. I accept that at one level it could be argued that in some circumstances mere threats of violence might qualify as violence itself. In the present case, however, without exception, the intimation that violence may be perpetrated upon anyone is closely associated with a complete absence of either the type of violence that is threatened or any violence at all. The tendency that is evident on this material would appear to be a tendency to make threats that are never followed up. All of the incidents concerned, in striking contrast to the acts alleged against all accused, ended somewhat lamely.

5. [41]

   At the opposite end of the spectrum, the acts alleged against all of the accused are violent in the extreme. It is in my view a mistake to conflate even a demonstrated tendency on the part of the accused to threaten violence that is not carried through, with its value in assessing the extent to which it rationally affects the assessment of the probability that they in fact kidnapped or murdered Mr Vollmost. It must be understood that the probative value in question is that of the putative tendency evidence and the extent to which it could rationally affect the probability of a fact in issue. It is not the reverse: the direct evidence upon which the Crown relies to establish the guilt of the accused cannot be used to bolster or to demonstrate the existence of the anterior tendency for which the Crown contends.

6. [42]

   Taken at its highest, the evidence that the Crown has foreshadowed it will lead against the accused, not being the proposed tendency evidence, supports the existence of a strong circumstantial case. There is, however, in my opinion a significant disconnect between that case, based upon the performance of the acts said to constitute the commission of the alleged offences on the one hand, and the evidence upon which the Crown proposes to rely as demonstrating some relevant tendency on the other hand. I find it difficult to understand how a jury might be expected properly to assess whether the accused are guilty or not guilty of committing the violent crimes of kidnapping and murder with the spurious and questionable benefit of evidence that appears to derogate from a tendency to engage in or perform the very type of conduct in question. In so saying I do not intend erroneously to indicate that the behaviour said to demonstrate a relevant tendency is not sufficiently similar to the charged acts to warrant consideration. I do intend to convey my opinion that the tendency demonstrated by the proposed evidence has no significant probative value in the defined sense in that it cannot rationally affect the probability of the existence of a fact in issue in this case.

7. [43]

   I am informed by the Crown that the evidence, subject to any objections that may be taken to it, or part of it, will be relied upon in the Crown case for non-tendency purposes. Without limiting the Crown in this respect, those purposes appear likely to include the following:

   1. (1)

      As evidence of the association between or among the accused.

   2. (2)

      As evidence that they were together engaged in a drug supply business which included the use of violence or at least threatened violence.

   3. (3)

      As evidence of their ambition to take over the drug supply business in the Hawkesbury region.

   4. (4)

      As evidence as to the fact of the death of Mr Vollmost, having regard to the contrast between the charged acts and the events involving, for example, Mr Moerig.

   5. (5)

      As to the state of mind of co-accused for the purposes of establishing what they contemplated as a possible incident of the joint criminal enterprise.

8. [44]

   The relevance of the material for non-tendency purposes appears generally to be accepted by counsel for the accused. While the jury will have to be given a direction about the use to which they cannot put the evidence, having regard to my conclusion that it cannot be relied upon for tendency purposes, the s 101(2) question of whether or not the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused does not presently arise.

9. [45]

   The Crown contends that the evidence relating to the Sing Mok incident has significant probative value because it demonstrates the tendency of the relevant accused to use violence or threats of violence to enforce drug debts or otherwise advance their drug supply operation. The Crown contends that this evidence makes it more likely that the violence directed towards Mr Vollmost occurred, including the car chase. Although striking similarity is not required, the Crown points to the following similarities:

   1. (1)

      Mr Mok was a drug customer.

   2. (2)

      The violence or threatened violence was carried out by Mr Tilley in the company of others.

   3. (3)

      The conduct was directed to the enforcement of a drug debt.

   4. (4)

      The conduct involved detaining Mr Mok against his will.

   5. (5)

      The conduct involved an implicit threat to kill Mr Mok.

10. [46]

    The only violence actually perpetrated against Mr Mok is the evidence that he was elbowed in the ribs. I accept once again that his involuntary detention might on one view also amount to violence or at least the threat of violence.

11. [47]

    However, as with Category 1, the threats went unfulfilled. Mr Mok was not assaulted or killed. His cars, or those owned by his parents, were not taken. I do not consider that the evidence demonstrates the existence of any tendency that could be of significant probative value in the circumstances of this case. As I have already indicated, it is a mistake to attribute some artificial significance to these events, amounting to a contention that they demonstrate some significantly probative tendency, by directing back upon them the bright light cast by the later events that support the charged acts.

12. [48]

    The words in question in this category arise in the course of a much longer conversation about demolition or building work. The response “Who are we bashing?” appears to be entirely enigmatic and unrelated to the remaining text. It is difficult to explain in the circumstances. On the contrary, it is not difficult to conclude that it is not evidence of the tendency for which the Crown contends. It is demonstrably unrelated to the recovery of drug debts or the assertion of influence as drug dealers in the Hawkesbury region. In my opinion, the response in issue has no significant probative value of any kind, if it in fact has any probative value at all.

13. [49]

    This conversation would appear to concern Mr Bentley relating a conversation with an unidentified person who paid him money for some unexplained purpose. It is not certain, although it is likely, that it relates to the payment of a drug debt. It is obvious from other parts of the recorded material that Mr Bentley is concerned to indicate that he would not be impressed if any of the notes given to him were not genuine currency. The recorded material includes a reference to “a fake fiddy” and a fake hundred, and some general discussion about the detection of counterfeit notes.

14. [50]

    The passage in question stands alone among the other topics discussed in this conversation. The context appears to me to demonstrate that the speaker is bragging about how he would deal with someone who he suspected of paying him with counterfeit currency. It is impossible to determine whether the words Mr Bentley told his co-accused that he said on the occasion that he is relating to them were said in fact or whether he is concocting this incident to impress them. The reliability or believability of this material would, of course, ultimately be a question for the jury if it were admitted.

15. [51]

    Having regard to the limited nature of the evidence in question, it does not seem to me that it has any significant probative value with respect to the tendency for which the Crown contends. The conversation in which the material is to be found involves three co-accused. It patently does not involve violence in fact. Properly understood, the statement also does not involve a threat of violence in the sense that it is evidence from the person to whom it was allegedly directed, as opposed to Mr Bentley’s account of what he claims to have said.

16. [52]

    The only portion of these messages that could have any conceivable relevance in the present context would appear to be the words “I get a bit lost in the moment and try break arms once they’re knocked out and cut fingers off and shit”. In my opinion this material is just puerile bravado and is not significantly probative of the tendency for which the Crown contends.

17. [53]

    The Crown presumably relies upon the words “you don’t want to end up like that guy in South Windsor” as supporting the existence of the tendency for which the Crown contends. This statement is different to the other material relied upon to the extent that it postdates the events that found the present charges. That fact would not disqualify the material from consideration as tendency evidence: see, eg, IMM v The Queen at [179] per Nettle and Gordon JJ; JLS v The Queen (2010) 28 VR 328; [2010] VSCA 209 at [29].

18. [54]

    I do not consider that this statement has significant probative value. It is rhetorical in nature. It describes no actual violence. It does not contain a specific threat of violence.

19. [55]

    However, more importantly in my opinion, I am not satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on Mr Bentley. This is for the reason that it appears to bespeak a knowledge of or intimacy with the events that give rise to these proceedings. That evidence in the setting of a non-tendency purpose may be anodyne and correspondingly benign. In the context of submissions and directions to a jury that it is available for use for tendency purposes, the evidence arguably takes on quite a different character. The prejudice that could not be ameliorated or eradicated by appropriate directions consists in the risk that Mr Bentley’s apparent knowledge of the foundational events might be treated by the jury as a manifestation of the very tendency for which the Crown contends. Those events, underlying the charges faced by the accused, were by then in the public domain. It would be wrong for a jury to reason in such a fashion. I am not satisfied that even the most detailed directions could avoid the possibility that a jury may be influenced to such a conclusion.

20. [56]

    The Crown contends that the tattoos on Mr Bentley’s leg display a willingness and tendency to use violence to further his criminal activities with the three co-accused. The evidence does not indicate whether the tattoos were acquired before or after the events that give rise to these proceedings.

21. [57]

    I have some considerable difficulty with the proposition that a tattoo can demonstrate the existence of a tendency. A tendency is an inclination towards a particular characteristic or type of behaviour. It would in my view be straining the language to breaking point to suggest that a passive depiction, even including words, could suggest or support the existence of an active tendency. Indeed, the tattoo says nothing about violence or threats of violence to collect drug debts or otherwise advance a drug supply business. It probably says a lot about Mr Bentley’s commitment to his co-accused, although the obverse is not necessarily true. In that setting, the tattoo may be admissible for a non-tendency purpose. However, in support of the application to adduce the evidence for a tendency purpose, it is not in my view attended by any, let alone any significant, probative value either by itself or having regard to other evidence adduced or to be adduced by the Crown.

Conclusion

1. [58]

   It follows that I reject the Crown’s application to adduce any of the nominated material as tendency evidence.

Miscellaneous

1. [59]

   Mr Thomas foreshadowed an application for a separate trial if the Crown’s application to adduce tendency evidence against his co-accused had succeeded. In the events that have occurred, it has become unnecessary to consider that application.