Supreme Court New South Wales Medium Neutral Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 209 Hearing dates: 14 February 2018 Date of orders: 14 February 2018 Decision date: 14 February 2018 Jurisdiction: Common Law Before: Harrison J Decision: The witness can give evidence in or to the effect of the material in paragraph 30 of his statement Catchwords: EVIDENCE ­­­– relevance – exclusion of evidence – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused 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 EX TEMPORE Judgment 1. HIS HONOUR: Ji Walsh is in the course of giving evidence in chief. He gave a statement to the police dated 5 February 2017 which has been circulated to the legal representatives of the accused. 2. I perceive that the Crown is imminently going to ask Mr Walsh questions concerning events related by him in paragraph 30 of his statement. In short compass, that paragraph deals with an incident at or outside the Windsor ice cream shop near the Macquarie Arms Hotel on George Street in South Windsor. 3. Mr Walsh's evidence suggests that he was then present when he saw one of the accused, Mr Bentley, throw an ice-cream at a person who was driving past and that he, thereafter, chased him on foot. Mr Walsh identifies the car as a station wagon that sped away driving on the wrong side of the road. 4. In the events that occurred, the driver of that vehicle returned and Mr Walsh speaks of what occurred then, including that Mr Bentley tried to pull the driver from the car and was punching what I assume to be the driver's side window. Mr Walsh's paragraph 30 goes on to say that he was unable to get the driver out of the car. Shortly thereafter, again, according to Mr Walsh, a conversation took place between Mr Bentley and the driver of the vehicle which later drove from the scene. 5. The Crown wishes to lead this evidence in order to corroborate evidence it anticipates will be given by a Mr Moerig about other matters which include the incident in which the ice cream was thrown at the passing car. That evidence may itself be the subject of dispute to an extent and degree that has not yet been explored. 6. Mr Trevallion objects to the evidence on a number of bases, the first being that it has no relevance or probative value or, alternatively, that its value in that way is significantly outweighed by its prejudicial effect. The unfair prejudice that Mr Trevallion seeks to identify is that the jury may inappropriately reason that Mr Bentley, at least, had a tendency to commit violent acts and that they would, in the circumstances in reasoning that way, do so improperly or inappropriately. 7. The so-called violence associated with this incident is, on one view, minor or in the scheme of the trial as a whole, relatively insignificant. The probative value of the evidence upon which the Crown relies is its capacity in the face of a dispute to corroborate the event in question. Having regard to the fact that a non-tendency warning will have to be given to the jury about this evidence, if it were admitted, and other evidence of the same capacity generally, and having, in like fashion, regard to the reason for which the Crown proposes to call this evidence, it does seem to me that there is no unfair prejudice but that the probative value of the evidence is significant. 8. In my view, Mr Walsh can give evidence in or to the effect of the material in paragraph 30, subject to any other usual objections as to form or the admissibility of questions generally concerning it. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 October 2019