Supreme Court New South Wales Medium Neutral Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 332 Hearing dates: 9 and 12 March 2018 Date of orders: 12 March 2018 Decision date: 12 March 2018 Jurisdiction: Common Law Before: Harrison J Decision: Jury directed in accordance with these reasons Catchwords: CRIME – joint criminal enterprise ­– extended joint criminal enterprise ­– self-defence ­­– whether self-defence should be left to the jury in relation to accused who did not commit the act which caused death CRIME ­– extended joint criminal enterprise ­­– whether jury should be directed that the Crown must establish that each accused must be aware that an extendable baton was to taken to the premises ­– where cause of death unknown CRIME – constructive murder ­– whether constructive murder should be left to the jury ­ Cases Cited: Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 IL v The Queen (2017) 91 ALJR 764; [2017] HCA 27 Hawi v R (2014) 244 A Crim R 159; [2014] NSWCCA 83 Clayton v The Queen (2006) 81 ALJR 439; [2006] HCA 58 R v Sharah (1992) 30 NSWLR 292 Taufahema v R [2007] NSWCCA 33 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: 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. The trial judge directed the jury on the elements of joint criminal enterprise as follows: "So, what is it that the Crown must prove to prove that an accused is guilty of murder on the joint criminal enterprise basis? The Crown must prove that at the time that the acts which caused the death of the deceased were committed, there are five things: 1. There was in existence a joint criminal enterprise or agreement, which had as its object the infliction of grievous bodily harm upon one or more members of the Hell's Angels group. 2. The accused, whose case you are considering, was a party to that agreement. 3. One or more parties to that agreement inflicted grievous bodily harm upon a member of the Hells Angels group, namely Anthony Zervas: (i) by a deliberate act; (ii) with the intention at least to cause grievous bodily harm; and (iii) unlawfully, that is, not in self-defence. 4. Anthony Zervas died as a result; and 5. The accused, whose case you are considering, was present, participating in the execution of the agreement at least by being ready and willing to provide assistance if required." 1. Bathurst CJ noted at [336] that there was no suggestion that his Honour's directions were erroneous. 2. In Osland v The Queen at [27], Gaudron and Gummow JJ said this: "[27] More to the point, principle dictates the conclusion that those who form a common purpose to commit a crime together are liable as principals if they are present when the crime, or any other crime within the scope of the common purpose, is committed by one or more of them. The crime having been committed in accordance with the continuing understanding or arrangement, all are equally guilty as principals regardless of the part played by each. That result follows from the reasoning in McAuliffe v The Queen. Indeed, that reasoning would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied. The appellant's submissions on this aspect of the case proceeded upon a false basis." 1. In IL v The Queen, the plurality said this at [2]: "[2] Since we conclude that murder in s 18 does not apply to circumstances involving self-killing, it is not strictly necessary for us to consider the operation of the rules of attribution when co-offenders act in concert. It suffices to observe that we agree with the assumption upon which this case was conducted by the parties, namely, that when two or more persons act in concert to effect a common criminal purpose, it is the acts of each person to effect their common purpose which are attributed to the others. The decision of this Court in Osland v The Queen establishes that it is the acts which are attributed in this scenario, it is not the liability. Nor is it the actus reus of a notional offence." 1. After a review of the authorities, the plurality said this at [40]: "[40] In summary, the decision of the majority of this Court in Osland resolved much confusion that had existed in the context of the primary liability of an accused person based upon the attribution of acts done in the course of a joint criminal enterprise. That decision was, and continues to be, authority for the proposition that joint criminal liability involves the attribution of acts. The attribution of acts means that one person will be personally responsible for the acts of another. The decision in Osland does not involve attribution of liability for either the whole of a crime or part of a notional crime." 1. In the same case, Gageler J said this at [106]: "[106] Osland was unchallenged in this case. My understanding of Osland accords with the explanation given by Kiefel CJ, Keane and Edelman JJ…". 1. 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. 2. 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]: "[26] If, as the prosecution contended was the case in respect of each applicant, the particular applicant under consideration was shown, beyond reasonable doubt, to have agreed with one or both of the other applicants to cause really serious injury to the deceased, a verdict of guilty of murder had to be returned. If the prosecution demonstrated beyond reasonable doubt that the applicant under consideration was party to an agreement with one or other of the applicants to assault the deceased to some lesser degree, and foresaw the possibility that death or really serious injury might intentionally be inflicted on the deceased in the course of that assault (otherwise than in self-defence), again, a verdict of murder had to be returned. In this latter respect, if persuaded beyond reasonable doubt that the applicant concerned went to the premises armed, or knowing that others were going armed, it would be open to the jury to infer that that applicant foresaw the possibility of assault with the requisite intent, but such an inference was not inevitable." [Emphasis added] 1. 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. 2. 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. 3. 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. 4. 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. 5. In Sharah, Carruthers J said this at 301: "The second class of case is where the accused lends himself to a criminal enterprise knowing that a potentially lethal weapon was being carried by one of his companions and in the event that it is in fact used by one of his partners with an intent sufficient for murder, then the accused too will be guilty of that offence of murder if the Crown establishes beyond reasonable doubt that the accused contemplated that in the carrying out of the common unlawful purpose, one of his partners might use a lethal weapon with the intention of at least causing serious bodily harm." [Emphasis added] 1. 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. 2. 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: "On this alternative basis, there's no requirement for the Crown to prove that the particular accused contemplated as a possibility, the particular way that Mr Vollmost was to be harmed, but bear in mind as I said, in relation to the example of the member of the group that were robbing a bank who threw the hand grenade, the others in the joint criminal enterprise must have foreseen or contemplated this possibility. In the present case, there is evidence to suggest that Mr Davies was holding the extendible baton when he ran up the driveway and into the shed, and indeed, Mr Davies gives evidence of having it in his hand at the time that he punched Mr Byrnes. For the other accused to be guilty of extended joint criminal enterprise murder on this basis, if you were of the view that Mr Vollmost was killed by the use of the baton, and not in the way described by Mr Davies, then you could not find the co-accused guilty of extended joint criminal enterprise murder unless you were satisfied that they foresaw the use of the baton or more particularly, that you were of the view that the evidence established that they were aware that Mr Davies had the baton at the time he left the car or entered the driveway or entered the shed. In other words, if the baton or its possession by Mr Davies represented some unexpected raising of the stakes as it were, much as the throwing of the hand grenade into the bank would appear to be in the example I gave you, then you could not find the particular accused who did not foresee the use of the baton in that way, guilty of extended joint criminal enterprise murder in the way I have described." 1. 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. 2. 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. ********** 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