R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 212

Supreme Court New South Wales

Medium Neutral Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 212 Hearing dates: 27 February 2018 Date of orders: 27 February 2018 Decision date: 27 February 2018 Jurisdiction: Common Law Before: Harrison J Decision: No case submission rejected Catchwords: CRIMINAL PROCEDURE ­– no case to answer application ­– specially aggravated kidnapping – whether accused had intention to kidnap ­– whether victim was dead or alive – application refused 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: At the close of the Crown case all accused have submitted that there is no case to go to the jury on the charge of either specially aggravated kidnapping or attempted specially aggravated kidnapping. For the reasons that follow, I consider that each charge should be left to the jury. 2. In order to prove that any one of the accused is guilty of the offence, the Crown must prove beyond reasonable doubt each of the following essential facts (or ingredients): 1. that the accused detained Mr Vollmost; 2. knowing that he was not consenting to that detention; and 3. the accused did so with the intention of obtaining an advantage by that detention. 4. the offence was committed in the company of another person or persons, and 5. actual bodily harm was occasioned to Mr Vollmost at the time of, or immediately before or after, the commission of the offence. 1. "In company" means that the Crown must prove beyond reasonable doubt that the offence was committed in the company of another person. If two or more persons are present, and share the same purpose to detain the alleged victim for advantage, they will be "in company", even if the alleged victim is unaware of the other person or persons. 2. "Actual bodily harm" includes any hurt or injury which interferes with the health or comfort of a person. It need not be permanent, but must be more than transient or trifling. Bruises and scratches are typical examples of injuries that can amount to actual bodily harm. 3. Mr Stratton of Senior Counsel, who appears for Mr Tilley, made the following submissions. First, that at the close of the Crown case there was no direct evidence of intention of any of the accused to detain Mr Vollmost in order to obtain an advantage of any sort. Indeed, Mr Stratton contended that there was no physical evidence of an intention on the part of any of the accused to kidnap Mr Vollmost. For example, no ropes or ties or other material was found at the scene suggesting that the accused proposed to disarm or disable Mr Vollmost for the purpose of detaining him. 4. Exhibit F in these proceedings is a compilation CCTV video which shows, among other things, two of the accused, in the company of the others, carrying Mr Vollmost's flaccid body through a gate giving access to the rear of the premises and down a driveway into a car waiting on the street. In the sense that the physical acts depicted in the video are unambiguous, it is not in dispute that the accused carried Mr Vollmost away. It seems to me in those circumstances that the absence of physical evidence consistent with an intention to tie or bind Mr Vollmost to overpower him or to secure his cooperation is beside the point. Other evidence in the proceedings demonstrates clearly that Mr Vollmost was assaulted in some fashion as the result of which he sustained significant injuries and lost a large quantity of blood. That apparent assault upon him is alone sufficient, even in the absence of the indicia of physical restraints, to amount to evidence from which an intention to disable Mr Vollmost for the purpose of detaining him might reasonably be inferred. 5. Secondly, Mr Stratton's principal submission is that at all relevant times Mr Vollmost was dead so that the kidnapping charge fails at the threshold. There is some evidence so far to support the proposition that Mr Vollmost was in fact alive when he was taken from the premises. For example, Mr Knight gave the following evidence on 8 February 2018: "Q. So the first point you see Mr Vollmost being carried is when they are bringing him through the gate, is that correct? A. Correct. Q. And your evidence was that as this group of men were carrying Mr Vollmost out, that somebody said "Oh, he is still breathing, grab him" correct? A. Correct. Q. So is that when you heard that being said, when you saw him being carried out the gate? A. No, momentarily just before that. Q. Your evidence was, as they carried him out, the group of men were saying 'oh, he's still breathing'? A. I assume as they were carrying him out, just just behind the gate, because, there was marginal room to get through the gate because there was a car parked in the driveway just beyond the gate. As they were walking through that vicinity that that is when that was said. Q. So it just as they were coming through the gate, is that correct? A. Yes." 1. Mr Byrnes also gave evidence upon this topic the next day which included the following: "Q. What were they saying, could you hear? A. 'Is that all he's got' and 'get him in the car he is still fucking breathing'. Q. Was it just one voice you heard say that? A. Two voices. Q. What else did you hear, apart from that? A. That was it. Q. Were they both speaking at the same time or, you just have to explain what you mean? A. Separately. Q. Were they both, do you remember the exact words or? A. That was the exact words I just told you." 1. Finally in this context Professor Duflou was asked to provide an opinion on the likelihood of Mr Vollmost being dead when he was taken through the gates. The following question and answer elucidate his opinion: "Q. Taking into account all the material you have, including the blood at the scene, and knowing that he was in the shed for a short period of time, are you able to provide any opinion on the likelihood of him being dead when he was taken out of the gates, him being already dead at that point? A. Look I think it's an entirely reasonable possibility. In general terms, for a person to die very very rapidly, as a result of blunt force, is in general quite uncommon. You - and here we talk of, let's say a space of a minute, because first the person has to be struck, and in my view has been struck repeatedly. So even if that is done in 30 seconds, that still leaves a minute. But it's very uncommon for a person to die within a minute from blunt force injuries, unless there's been massive injury to the body." 1. In a slightly different context Mr Vollmost's then partner, Ms Carrier, spoke to what she heard said by one of the accused as they were running towards the shed at the rear of the premises. Ms Carrier recalled hearing somebody say "Get him, punch him". Upon Ms Carrier's assessment, those words were said roughly 4 minutes before Mr Vollmost was carried out through the gates. As revealed in the CCTV video, she observed one person carrying his arms and another carrying his legs. She described his face as "up to the sky". 2. Mr Stratton contended that evidence touching the question of whether or not Mr Vollmost was alive or dead when he was taken from the premises falls into three categories. The first is the CCTV footage. The second is the evidence of what people heard said concerning Mr Vollmost's condition. The third is the opinion of Professor Duflou. Mr Stratton contended that the jury would have to be satisfied beyond reasonable doubt, before the accused could be convicted of this charge, that Mr Vollmost was still alive when he was taken from the premises. The burden of this submission was that the evidence upon which the jury might reasonably be expected to deliberate was in all relevant respects evenly balanced and, by inference, that they could not even be satisfied of this issue on the balance of probabilities. 3. In my opinion, the flaw in that argument is to attribute inevitable equality to the evidence that is ostensibly in competition. It has to be borne in mind that the evidence of Mr Knight of the conversations or words that he heard said came to his notice while he was sitting in Mr Byrnes' motor vehicle in the driveway with the door open. His view was relatively unobstructed and, by reason of his proximity to what was happening as Mr Vollmost was carried past him, his ability to hear what was said was unimpeded. Indeed, nothing that Mr Knight said he saw or heard was the subject of any serious challenge. 4. It seems to me in the circumstances that the jury would be entitled, upon the basis of the evidence of Mr Byrnes and Mr Knight at least to be satisfied beyond reasonable doubt that Mr Vollmost was still alive at the relevant time. Professor Duflou's evidence does not foreclose that prospect and the video depictions of Mr Vollmost as he is carried down the driveway are effectively neutral. I consider that there is sufficient evidence upon the basis of which the jury could exclude as a reasonable possibility that Mr Vollmost was dead. 5. It becomes unnecessary to consider the question of whether or not there is material fit to go to the jury on the alternative verdict of attempted specially aggravated kidnapping.