R v Bentley; R v Davies; R v Thomas; R v Tilley [2019] NSWSC 204

Supreme Court New South Wales

Medium Neutral Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2019] NSWSC 204 Hearing dates: 4 March 2019 Date of orders: 05 March 2019 Decision date: 05 March 2019 Before: Harrison J Decision: Application to call Detective Moon rejected Catchwords: CRIMINAL PROCEDURE – where accused charged with murder – where on first day of trial Crown seeks leave to rely upon expert report – where expert report served late – whether receipt of the report would cause unfair prejudice to the accused – application to rely on expert report rejected 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) C Waterstreet (Accused Davies) N Carroll (Accused Thomas) M Cunneen SC (Accused Tilley)

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

Judgment 1. HIS HONOUR: On the first day of a trial scheduled to run for approximately six weeks, the Crown seeks leave to rely upon an expert report from Detective Sergeant Gregory John Moon dated 19 February 2019. It is conceded by the Crown that the report is late, having been served only as recently as 27 February 2019 and that there are no extenuating circumstances that the Crown can pray in aid of its tender that might explain or excuse that delay. 2. This trial is a re-trial of criminal proceedings that resulted in the jury on the last occasion being unable to reach a unanimous or majority verdict on any of the four counts on the indictment against any of the four accused. The same four accused now face trial on an indictment that charges only that they murdered Brendan Vollmost. The circumstances that give rise to that charge are identical to those upon which the accused previously faced trial and in brief summary are as follows. 3. At about 10.30pm on Tuesday 31 March 2015, a white Holden Commodore station wagon driven by Ronald Byrnes and occupied by Brendan Vollmost in the front passenger seat and Brendan Knight in the rear passenger seat, hurriedly entered and stopped in the driveway at 79 Cox Street, South Windsor. Mr Vollmost lived at this address. This car had been pursued to 79 Cox Street through the nearby streets of South Windsor by a white Hyundai i30 station wagon driven by William Thomas. Also inside this car were his co-accused Jamie Tilley, Jack Davies and Mitchell Bentley. 4. Security cameras at 79 Cox Street were operating and recording at this time. 5. Mr Vollmost and Mr Byrnes quickly got out of the Commodore station wagon and attempted to jump the closed gates between the end of the driveway and the rear yard. The gates sprang open allowing both men to run into the yard towards a small shed. At the same time, the Hyundai stopped directly outside 79 Cox Street. 6. Mr Vollmost and Mr Byrnes were followed through the gates very closely by Mr Davies who was armed with an extendable baton. Mr Bentley ran directly behind and in support of Mr Davies. 7. As this occurred, Mr Knight attempted to get out of the Commodore. However, Mr Tilley prevented him from doing so and he was forced to remain seated in the back of the car. After parking the Hyundai, Mr Thomas ran to assist Mr Tilley and they had a brief conversation. Mr Thomas then ran into the rear yard and out of security camera view. 8. It is alleged by the Crown that Mr Vollmost and Mr Byrnes attempted to take cover inside the shed. However, both men were severely assaulted. Mr Byrnes was knocked unconscious by Mr Davies. Evidence at the crime scene indicates there was a violent confrontation that resulted in Mr Vollmost receiving very severe injuries, sustaining substantial blood loss and loss of consciousness. The Crown case at the first trial was that the extendable baton carried by Mr Davies was used to inflict some of Mr Vollmost's fatal injuries. The baton was later recovered from the shed. Forensic analysis of this weapon has confirmed that Mr Vollmost's blood is to be found on the tip and shaft. Mr Thomas has the same DNA profile as the DNA profile extracted from the handle of the baton. 9. Mr Thomas returned to Mr Tilley and, after a short conversation, Mr Tilley entered the rear yard. Mr Thomas guarded Mr Knight. Shortly thereafter, Mr Bentley and Mr Tilley emerged from the rear yard carrying Mr Vollmost who was either dead or unconscious. Mr Bentley carried the top half of Mr Vollmost and Mr Tilley carried his legs. They continued to carry Mr Vollmost to the Hyundai and placed him inside. The four co-accused then drove away from the scene in the station wagon driven by Mr Thomas. Mr Vollmost has not been seen or heard from since this incident and the Hyundai has not been located.