R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 195

Supreme Court New South Wales

Medium Neutral Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 195 Hearing dates: 23 February 2018 Date of orders: 26 February 2018 Decision date: 26 February 2018 Jurisdiction: Common Law Before: Harrison J Decision: The listening device product is admissible Catchwords: EVIDENCE – relevance – discretions – exclusion of evidence – criminal proceedings – listening device material Cases Cited: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 175 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: The Crown wishes to tender listening device material, including both the electronic version and its written transcription. The material variously records all of the accused speaking on a number of dates between 9 April 2015 and 3 September 2015. Mr Thomas' brother Joshua Thomas is involved in the first recording. 2. All of the accused oppose the tender of any of this material. I have previously indicated that the Crown can adduce the listening device material recorded on 12 April 2015: see R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 175. 3. Objection is taken on a number of bases, including that the material lacks any relevance at all and should be rejected on this ground alone. The accused argue that the material is difficult to understand as there is no discernible context to assist in an understanding of what the accused are discussing at any particular time. 4. I agree that there are some difficulties of this type that confound an absolute appreciation of what the accused are talking about at all times. However, that fact alone does not mean that the evidence is not fit to go to the jury. The relative contemporaneity of the conversations to the events of 31 March 2015 is in my view alone sufficient to give this material some evidentiary value. There is evidence already that the police released certain information and calls for assistance to the public in the weeks and months that followed the taking of Mr Vollmost. The Crown wishes to argue that the conversations can be understood as the accuseds' reaction to some of this material, including the accused watching what appear to be YouTube or Facebook reproductions of the CCTV footage from 79 Cox Street on the night in question and passing comment upon it. 5. The listening device material from 9 April 2015 suggests that some of the accused are discussing with Joshua Thomas how he should react if he is interviewed by the police concerning the white Hyundai station wagon. This conversation is recorded in a reserve in South Windsor. Without descending into the detail of the material it is sufficient to note that in my opinion it is very relevant and contextually relatively easy to understand. This conversation occurs only nine days after Mr Vollmost's disappearance. It is obvious that Mr Tilley is instructing Joshua Thomas in what to say about his acquisition of the vehicle and how it was stolen ("taken") two days later from his mother's house. Mr Tilley also tells Joshua Thomas to limit what he tells the police and to refuse to speak if necessary. It is apparent that Joshua Thomas is being coached. 6. The conversation recorded on 15 April 2015 records Mr Tilley telling Mr Thomas the following: "They're fucking, there's nothing. Like there's nothing to it. They have nothing. Cause if they've fucking really got anything, like, we're gone. All we gotta do is say 'nah, nah, nah, don't remember.' 'You haven't seen it bro?' 'Nah, I haven't seen it bro. Nah mate.' 'You don't remember seeing this fucking vehicle?' 'Nah never, don't remember. Who's driving it?' 'Have you ever been in it?' 'No, I haven't.'" 1. Without elaborating, it seems to me that this material is highly relevant to the Crown case. 2. The listening device material for 27 April 2015 consists of part of a conversation in which Mr Tilley says this: "Yeah but bro we coached him and when you coach someone so they don't fuck up. We coached him to say… 'I bought a car for $800' and if they ask you any questions about it you just say 'yes, I bought a car for $800.'… Don't write a statement either… no more fucking answers bro, nothing. That's what we told him and told him and told him and told him." 1. This material clearly appears to dovetail with the instructions given to Joshua Thomas on the earlier occasion. The Crown contends that Mr Tilley is here talking about what he told Joshua Thomas. That would clearly be relevant. It is material that ought quite properly be left to the jury. 2. The 12 June 2015 recording speaks of La Familia. It is not readily apparent what it concerns. It arguably has little obvious relevance. 3. The 16 June 2015 material appears on its face to concern a discussion between Mr Tilley and Mr Bentley about drug dealing or drug sales. In the context of the Crown case that alleges that the accused were in the business of selling drugs, this material is clearly relevant. 4. The 17 June 2015 material is the longest sequence of recorded conversations. The Crown suggests that it is in the course of this conversation that the accused can be heard speaking about the CCTV footage of their activities at 79 Cox Street on 31 March 2015. This material is clearly relevant. 5. The 19 July 2015 conversation recorded between Mr Tilley and Mr Thomas is, standing alone, close to meaningless. Precisely what is the subject matter of the conversation is difficult to fathom. This material is barely relevant. 6. The 24 July 2015 material appears to concern Mr Tilley and Mr Bentley coming to a realisation or conclusion that they need to be far more cautious and circumspect in their references to the events of 31 March 2015. As Mr Tilley says, "I think we were just too casual in our way we talk about it." He goes on to say, "we have become … complacent." While I accept that there may be more than one view of what this conversation was about, it is not irrelevant. It also arguably concerns a discussion about drug dealing. 7. The final conversation occurred on 3 September 2015 at the Mt Druitt police station between Mr Bentley and Mr Thomas. It seems that they have at this stage been provided by the police with some written material concerned with the police suspicions concerning them. These accused then appear to discuss some of what they have read. This material is clearly relevant. 8. The accused also complain that the material is unfairly prejudicial. I am unable to see how that could be so. It may be that the material is inimical to the interests of the accused in this trial. It does not, however, appear to me to be unfair to them in the relevant sense. 9. In my opinion, all of the listening device material is admissible.