R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 93

Supreme Court New South Wales

Medium Neutral Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 93 Hearing dates: 12 February 2018 Date of orders: 13 February 2018 Decision date: 13 February 2018 Jurisdiction: Common Law Before: Harrison J Decision: Question rejected Catchwords: EVIDENCE – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused Legislation Cited: Evidence Act 1995 (NSW) s 137 Category: Procedural and other rulings Parties: Regina (Crown) Mitchell James Bentley (Accused) Jack Davies (Accused) William Patrick Thomas (Accused) Jamie Michael Tilley (Accused) Representation: Counsel: D Scully (Crown) J Trevallion (Accused Bentley) P D Young SC (Accused Davies) N Carroll (Accused Thomas) J Stratton SC (Accused Tilley)

Solicitors: Director of Public Prosecutions (Crown) Gregory J Goold Solicitor (Accused Bentley) RHA Law (Accused Davies) Matouk Joyner Lawyers (Accused Thomas) Voros Lawyers (Accused Tilley) File Number(s): 2015/258433 (Bentley); 2015/258493 (Davies); 2015/258448 (Thomas); 2015/258462 (Tilley) Publication restriction: Nil

Judgment 1. HIS HONOUR: Section 137 Evidence Act 1995 is in the following terms: "137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 1. Joshua Michael Carlino is currently giving evidence in the Crown case. His evidence in chief is not yet concluded. Mr Carlino has given at least two statements to the Police. One is dated 24 June 2015. Paragraph 16 of that statement is as follows: "16 I jumped in my car and left to go to the 7 Eleven where I was going to meet up with Tilley to get the money for the drugs. I drove down the road and I saw a white small coupe. This coupe followed me from Danny's house and flashed its lights. I drove down the road and turned left and got out of my car I walked up to them. I said, 'If you are here to do what you have got to do then just make sure nobody gets hurt. Also there are kids in the house.' I was talking directly to Tilley through the front passenger window. I saw that Jack, Will and Bentley were also in this car. I knew that at this time they were looking to catch up with the male that had just supplied me with the ice. And I knew that they had confirmed that the car belonged to that male they were looking for. I knew this because they didn't say to me that it's not the bloke we are looking for." 1. The second statement is dated 26 June 2015. Paragraph 20 of that statement is as follows: "20. When I said to Tilley, 'If you are here to do what you have got to do then just make sure nobody gets hurt. Also there are kids in the house.' I knew that there was a likelihood that they were going to intimidate the guys to get the money and I didn't want them to hurt anyone or cause any drama at Danny's house. I knew that they were likely to use force as Tilley had Jack, Bentley and Will with him. From what I discuss with Tilley prior to this Tilley had said that he was not going to hurt the guy. I did not want anything more to do with this at this point but I told Tilley there were kids in the house. I was trying to persuade them not to do anything there. I asked Tilley for the $1100 but he didn't want to give it to me. I said at this point that I was not going to go through with the deal and buy the drugs. I figured that Tilley, Jack, Bentley and Will had achieved what they wanted to do in locating the dealer and didn't need to give me the money any more." 1. Objection is taken by all counsel to a question from the Crown that seeks to elicit from Mr Carlino the terms of anything he said to the accused on the occasion when they were all seated in a car some short distance from premises owned or occupied by Danny Gatt in Porpoise Crescent, Bligh Park. The Crown reasonably anticipates that Mr Carlino will repeat the words, contained in his statements, that he told Police he said to the accused on this occasion, namely "If you are here to do what you have got to do then just make sure nobody gets hurt. Also there are kids in the house". 2. Mr Carlino has given evidence already to the effect that he was asked by Mr Tilley to let him know if and when Mr Carlino was going to have any dealings with the deceased Brendan Vollmost. Mr Carlino has given evidence that Mr Tilley was to give him $1,100 to purchase 3.5 grams of methylamphetamine from Mr Vollmost and that Mr Carlino in fact entered into negotiations at Mr Gatt's house with Mr Vollmost for that purpose. However that transaction did not proceed because Mr Carlino was dissatisfied with the quality of the drugs Mr Vollmost was offering him. Mr Carlino's evidence is that when he decided not to purchase the drugs from Mr Vollmost, he left Mr Gatt's house and drove away. It was in the course of that journey that he came across all four of the accused sitting in a motor vehicle nearby. The evidence is not entirely clear at this stage whether or not that meeting was entirely by chance or whether Mr Carlino was aware that these accused would be in that location by some pre-arrangement. 3. Mr Carlino's evidence so far has not in terms, or on one view by implication, given rise to the fact or the inference that Mr Tilley, or any of the other accused, had previously indicated to him that they were dissatisfied for some reason with Mr Vollmost or that they wished to harm him in some way. The objection to the evidence in question proceeds on the basis that it contains an unfounded, or on another view an ill-founded, assumption, or that Mr Carlino has in like fashion formed an unsupported conclusion that this was the accuseds' intention. The objection is framed as one falling within s 137 Evidence Act upon the basis that its probative value is outweighed by the danger of unfair prejudice to all of the accused. 4. In my opinion this objection is well made. It would be otherwise if Mr Carlino had been able to give evidence, presumably of a conversation or conversations with Mr Tilley, in which he had described to Mr Carlino a course of conduct or action that Mr Tilley intended to pursue and which included the infliction of harm upon Mr Vollmost. No such evidence has yet been given. The probative value of the evidence objected to is therefore wholly underpinned by an assumption or conclusion that is neither established nor supported. The prejudice to the accused is that, if Mr Carlino is permitted to give that evidence in the circumstances as they now present themselves, the jury may feel inclined impermissibly to reason that Mr Carlino's assumption or conclusion actually has some basis in fact. As I have already indicated, Mr Carlino's evidence in chief is not yet concluded. I am unaware of whether or not it is intended to lead evidence from Mr Carlino that might lay the foundations for the admissibility of the evidence to which objection is taken. That question remains to be seen. 5. For presently relevant purposes I consider that the anticipated answer to the question has little, if any, probative value but that in either case it is outweighed by the danger of unfair prejudice to the accused which I have identified. 6. The question is rejected.