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

HIS HONOUR: Following final submissions by counsel, but before I commenced to sum up the case to the jury, Mr Stratton of senior counsel for Mr Tilley raised a series of questions concerning the content of some directions of law that I should give them. Mr Stratton’s concerns were three in number.

First, with respect to my foreshadowed direction on the Crown’s case of joint criminal enterprise murder, the question arose as to whether the jury should be directed that an accused who does not perform the physical acts causing death can only be convicted if the jury is satisfied that the co-accused who do so are not acting in self-defence. In the present case, there is evidence to suggest that either Mr Davies or Mr Bentley performed the acts causing death, having inflicted the injuries upon Mr Vollmost from which he died. They contend, and Mr Davies gave evidence, that Mr Vollmost produced a sawn off shotgun and aimed it at them in the shed to which he had retreated at 79 Cox Street, South Windsor, in an apparent attempt to flee from the accused. Mr Davies’ evidence was that Mr Bentley punched and then kicked Mr Vollmost when that occurred.

Mr Tilley was at this time standing in the driveway to the premises, some small distance from the shed, apparently guarding Mr Knight who remained seated in Mr Byrnes’ Holden Commodore station wagon. Mr Tilley did not enter the shed until after the injuries that killed Mr Vollmost had been inflicted upon him. It follows that the alleged presentation of the shotgun by Mr Vollmost occurred beyond Mr Tilley’s sight or hearing and not in circumstances where, on any view, he could have had an apprehension concerning his own safety or the safety of another of the accused. Mr Tilley was nevertheless present and willing to participate in the joint criminal enterprise.

The Crown case is that the four accused pursued Mr Vollmost to 79 Cox Street, South Windsor with the intention, relevantly, of inflicting grievous bodily harm upon him. Mr Tilley did not inflict any injuries upon Mr Vollmost. Mr Stratton contended that, notwithstanding the decisions of the High Court in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 and IL v The Queen (2017) 91 ALJR 764; [2017] HCA 27, Mr Tilley could only be found guilty of murder as a participant in a joint criminal enterprise if the jury was satisfied that either Mr Davies or Mr Bentley was not acting in self-defence, or in other words, if both Mr Davies and Mr Bentley were convicted of murder or manslaughter.

Mr Stratton relied upon the direction to the jury given by R A Hulme J that was considered by the Court of Criminal Appeal in Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83. The Crown case there was that a group of outlaw motorcycle gang members engaged in a wild brawl at Sydney’s Kingsford Smith airport. Mr Hawi was a member of one of the gangs involved. The Crown case was that one of the accused, of whom Mr Hawi was one, struck the deceased Anthony Zervas with a bollard causing death. The Crown alleged that a Mr Menzies wielded the bollard, but he was acquitted of murder and the jury could not agree on manslaughter. Mr Hawi was convicted of murder.

The trial judge directed the jury on the elements of joint criminal enterprise as follows:

Bathurst CJ noted at [336] that there was no suggestion that his Honour’s directions were erroneous.

In Osland v The Queen at [27], Gaudron and Gummow JJ said this:

In IL v The Queen, the plurality said this at [2]:

After a review of the authorities, the plurality said this at [40]:

In the same case, Gageler J said this at [106]:

In the present case, Mr Stratton urged me to direct the jury on joint criminal enterprise murder in the same terms as those given to the jury by R A Hulme J in Hawi. The Crown contended, on the contrary, that having regard to the decisions in Osland and IL, among others, a separate direction should be given with respect to Mr Tilley and Mr Thomas, but excluding any reference to self-defence.

The proposition, advanced on behalf of Mr Tilley, that he and Mr Thomas could not be convicted of murder if Mr Davies or Mr Bentley succeeded on the issue of self-defence, does not necessarily or logically flow from the fact that the Court of Criminal Appeal did not criticise the direction given at trial in Hawi. However, the appropriateness of the direction in the present case needs to be considered in the light of what the High Court said in Clayton v The Queen (2006) 81 ALJR 439; [2006] HCA 58 at [26]:

It seems to me that the reference in IL to the proposition, flowing from the decision in Osland, that joint criminal liability involves the attribution of acts, not liability, cannot easily be reconciled with the references to self-defence in Clayton at [26]. Accordingly, against the possibility that Mr Tilley and Mr Thomas, as members of a joint criminal enterprise pursuant to which Mr Vollmost was killed by Mr Davies and Mr Bentley, would be entitled to take advantage of a failure by the Crown completely or partially to negative self-defence in the case of Mr Davies and Mr Bentley, I directed the jury in the terms sought by Mr Stratton. Ms Carroll for Mr Thomas supported Mr Stratton’s approach.

Mr Stratton’s second concern involved the submission, in the context of extended joint criminal enterprise, that the Crown must establish against each accused that the particular accused knew that a weapon was to be taken to the premises in order to establish murder by this route. In the present case there is evidence that Mr Davies was armed with an extendable baton when he left the white Hyundai and ran up the driveway at 79 Cox Street, South Windsor and into the shed at the rear of the premises where Mr Vollmost was injured. That weapon is discernible on the CCTV material depicting the events on the evening in question. Of all of the accused, only Mr Davies gave evidence. There is no direct evidence that his co-accused were aware of the fact that Mr Davies was armed in that way.

The Crown case of extended joint criminal enterprise murder was not restricted to the proposition that Mr Vollmost was injured and killed by the use of the baton. That is to say, the Crown case was that the accused were all parties to a joint criminal enterprise to assault Mr Vollmost in the performance of which grievous bodily harm was inflicted upon him. It was not limited to the suggestion that Mr Davies was carrying a potentially lethal weapon which his co-accused knew about and that they contemplated might be used to inflict such injuries. It remained at large that the accused might contemplate the infliction of such injuries by some unspecified means. The baton was tendered in evidence, along with scientific evidence dealing with the possibility that blood spatter patterns were consistent with its use. However, there was in the events that occurred evidence from Mr Davies that Mr Vollmost was injured and killed as the result of being punched and kicked by Mr Bentley. The forensic evidence also appeared to indicate that only small traces of Mr Vollmost’s blood were present on the baton, in circumstances where copious amounts of his blood were found at the scene.

Mr Stratton relied upon cases such as R v Sharah (1992) 30 NSWLR 292 at 297 and Taufahema v R [2007] NSWCCA 33 in which the deceased victim of the co-accused’s conduct resulted from the known use of a lethal weapon, in each case being a firearm. Mr Taufahema’s conviction, for example, was quashed upon the basis that the directions to the jury did not make it clear that the jury would have to be satisfied at his co-accused may possibly use his gun to kill or seriously injure the policeman who was killed.

In Sharah, Carruthers J said this at 301:

In the present case, Mr Vollmost has never been seen or heard from since 31 March 2015 and his body has never been found. He is presumed to be dead, and Mr Davies in fact gave evidence that he and Mr Tilley disposed of his body. Accordingly, the precise way in which he was killed was not known when these trials commenced and, save for the explanation of how he was killed given by Mr Davies after the close of the Crown case, the precise cause of death is either in doubt or may never be known with any certainty. There is evidence from which the jury might conclude that the baton was used to kill Mr Vollmost but that is not an inevitable conclusion. Indeed, on the arguments raised by the defence, in particular those proffered by Ms Carroll for Mr Thomas, the evidence suggesting that the baton was the murder weapon is at least questionable. This is to be contrasted with cases such a Sharah and Taufahema in which the cause of death was by the use of the very lethal weapon that was carried by another member of the alleged criminal enterprise.

I ultimately directed the jury, in standard terms, that on the Crown’s case based upon extended joint criminal exercise, the Crown would need to establish, among other things, that the particular accused contemplated the possibility that, in the execution of the joint criminal enterprise to cause physical harm to Mr Vollmost, really serious injury might be inflicted upon him. On one view it would have been wrong to direct the jury in terms that specifically limited the relevant object of that contemplation to the foreseeable use of the baton about which the evidence was indecisive on the one hand and about the use of which as a cause of Mr Vollmost’s death there was a clear evidentiary contest on the other hand. However, I ultimately acceded to Mr Stratton’s request upon the basis that it was open to the jury to be satisfied on the evidence that Mr Vollmost was or may have been killed by the baton and not otherwise. In those circumstances I directed the jury in the following terms:

Finally, Mr Stratton submitted that felony murder should not be left to the jury upon the basis of attempted specially aggravated detain for advantage. This was said to be so because the Crown has not established that Mr Vollmost was alive when he was taken from the premises. In such circumstances, according to this analysis, there was no evidence of an intention to detain.

The difficulty with this argument, it seems to me, is that it ignores the fact that the attempt offence arguably commenced at the time when the accused all first arrived at 79 Cox Street, South Windsor and continued up until the time when the kidnapping offence became frustrated by Mr Vollmost’s intervening death. Accordingly, if the jury were satisfied that the accused entered the shed with the intention of kidnapping Mr Vollmost but were unable to effect that purpose because, in the events that occurred, he was killed, the jury could still come to the conclusion that the accused attempted to commit the principal crime. In my opinion the very fact of turning up at the premises in numbers and chasing Mr Vollmost into the shed is evidence capable of demonstrating the existence at that time of an intention to detain him. Whether or not it does demonstrate that intention is a matter for the jury to decide.