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. Evidence at the first trial 1. Professor Johan Duflou gave evidence at the first trial in accordance with a report prepared by him dated 3 April 2016. He gave evidence in court on 19 February 2018. Professor Duflou's report was in the form of answers to the following questions: 1. Is the blood on the tool box and bar fridge consistent with spatter from some type of blunt force or is it more consistent with droplets from an open wound? 2. What type of injury would be expected if the blood on the white metal drawer and the large pool of blood on the floor originated from one person? 3. What is the probable cause of the quantity of blood found on the lounge and tarpaulin? 4. Would an expandable [sic] baton inflict sufficient injuries to a person in little over a minute in order to correspond with the amount of blood at the crime scene? 5. Detail the likely physical state of the victim when the offenders are depicted carrying the victim from the crime scene, bearing in mind the expandable [sic] baton located and the amount of blood at the scene. 6. In your opinion, would the injuries sustained by the victim have been fatal? If this is the case but death would not necessarily have been immediate, are you able to provide an estimate of time in which the victim would have required medical attention? 1. The Crown case at trial was that Mr Vollmost was killed by a blow from a blunt object such as a baton. The evidence given by Professor Duflou about blood spatter in the shed was significantly influenced by, if not predicated upon, that case theory. However, it was not limited to that hypothesis of what might have occurred in the shed, as Professor Duflou's answer to question (2) makes clear: "There is a significant amount of volume blood pooling on the floor and a combination of blood spatter, passive bloodstains and transfer bloodstains are noted on various tools and the contents of the white drawer. The exact amount cannot be estimated but in all likelihood would exceed 100ml, and could be significantly more than that. Such bleeding would require that there were one or more significant wounds to the body with resultant blood loss from such wounds. Given the presence of blood spatter, it is very likely that the wound or wounds would be the result of impact with one or more blunt objects, although I cannot exclude the possibility of one or more sharp objects such as a knife having been used as well. Assuming no sharp force object was used, most likely the nature and extent of the bleeding would indicate that at least one of the wounds would have been to the head of Mr Vollmost, because significant bleeding from application of inflicted blunt force is relatively uncommon in injuries to other parts of the body." [My emphasis] 1. During the course of his evidence-in chief, Professor Duflou was asked about photograph 70, and the type of weapon that might have caused the blood spatter patterns depicted in it. Those questions and answers were as follows: "Q. … Are you able to say, just looking at this blood, what type of implement, if any, caused the injury? A. No. I think that's very hard to say with any degree of certainty. There's – it's something that is capable of causing low to medium blood spatter, but in terms of anything more than that, I think it's very hard. Q. Are you able to say whether it was a blunt force, a force from a blunt instrument or, as opposed to for example from a knife, are you able to provide any opinion on the likelihood of those scenarios? A. Generally cast-off doesn't tend to occur with a knife, unless it's plunged repeatedly into a bloodied surface. It can, but it's uncommon. I would say in all likelihood it's more likely to be a blunt object, or objects, rather than a sharp object." 1. Professor Duflou also gave this evidence: "Q. Are you able to say, based on the material you had, whether Mr Vollmost would have died if not treated in a hospital? A. Again I can't answer that with any certainty. There's certainly a lot of blood loss in a shorter period of time, and it's unlikely that, given significant blood loss like that, that it would stop by itself. Especially in the setting of blunt force injury, which can be harder to stop the bleeding than in sharp force injury. Essentially just pressure in sharp force can often stem the bleeding. In blunt force it's harder to do that because it's usually as a result of deeper injury as well." 1. Professor Duflou did not otherwise mention or refer to sharp objects or knives in the context of what weapon or implement, if any, might have caused the type of blood loss and spatter patterns depicted in photographs shown to him that were taken inside the shed. Detective Sergeant Moon's report 1. Detective Moon described his duties as including the technical examination of the scenes of alleged crimes and incidents where physical evidence may be present. He said he is authorised by the Forensic Services Group to undertake general crime scene investigations and certain specialist investigations including bloodstain pattern analysis. He described that as: "the examination of the location, size, shape and distribution of bloodstains and bloodstain patterns in association with knowledge of the underpinning science (physics, mathematics and biology) to provide information on the event or a sequence of events that resulted in the deposition [sic] of bloodstains or bloodstain patterns." 1. Detective Moon is also a member of the International Association of Bloodstain Pattern Analysts. 2. Detective Moon was asked to provide his expert opinion in relation to the following matters: "13.1 The nature of the various blood stains at 79 Cox Street, South Windsor and, in particular the blood staining in the shed. 13.2 Whether and to what extent [he agrees] with the opinions expressed by Crime Scene Officer Benjamin Radford in his report dated 23 January 2016 as to the classification of the various blood stains and any further relevant observations…about those blood stains. 13.3 The possible causes of that blood staining and, in particular: 13.3.1 Whether the blood staining is consistent with a blow or blows inflicted by the metal baton located in the shed; 13.3.2 Whether if a metal baton was used you would expect there to be 'cast off' blood staining present in the shed; 13.3.3 Whether the blood staining is consistent with a single punch to Mr Vollmost's head followed by a single kick." 1. As was anticipated by Mr Waterstreet of counsel, who appears for Mr Davies, Detective Moon's opinion would appear in large measure to be directed at the evidence given by Mr Davies at the first trial in which he described the assault upon Mr Vollmost in the shed. Without descending into the detail of that evidence, Mr Davies gave a version of events that did not include the use of an implement or weapon, blunt, sharp or otherwise. It will be apparent that the existence of the relevant intention that the Crown seeks to establish as part of its case alleging that the accused murdered Mr Vollmost therefore is or may be informed, although obviously not determined, by the manner and cause of his death. Consideration 1. All of the accused oppose the Crown's proposal to rely upon Detective Moon's report. In my opinion, the Crown should not be permitted to rely upon it. This is for a number of reasons. 2. First, the report is late. It was served upon the legal representatives of the accused on the Wednesday before the trial due to start the following Monday. It is 51 pages in length together with 66 photographs to which it refers. None of the accused has had any reasonable opportunity to consider it or to qualify any suitable expert to respond to it. 3. Secondly, it is not merely a more detailed report from another expert that expands or extends the views or opinions of previous experts without a substantive alteration of the scientific focus. As already indicated, the Crown case at the first trial emphasised the use of a blunt force weapon, such as a baton. Detective Moon has in part, although not exclusively, proffered an opinion that expands the Crown case beyond its original hypothesis. That is apparent from Detective Moon's report at 53.3.3 and 53.3.4 as follows: "53.3.3 A substantial amount of blood had accumulated forming two blood pools behind items located between the bar fridge and the lounge. Both stains measured approximately 30cm by 30cm. To acquire the amount of blood present at the location, in a very small time-frame, a large gushing type wound be the most probable source of the blood. The two most common injury types related to this scenario are incised wounds (cutting injury) and puncture wounds (stab wound). 53.3.4 A yellow and red coloured Phillips head screwdriver was located within the area of the blood pools. Blood staining was visible on the entire surface of the shaft, from the tip to an area about 10mm before the handle. The stain showed characteristics of a transfer contact. The even smearing located along this section of the shaft, is frequently seen on implements used in stabbings or puncture type injuries. Given the amount of blood present, the short time frame and the type of blood staining located on the shaft, it is possible that this tool was used as a weapon." 1. Even putting to one side the question of whether or not these opinions qualify as expert opinion, about which I received no submissions, and upon which it is unnecessary to comment, I am sympathetic to the contention that the accused might not, and probably could not, meet this material without the assistance of their own suitably qualified expert. The Crown does not appear to contest to fact that the accused could not arrange such a response in the time available. The accused ought not, in my opinion, to be expected to do so. 2. In some respects, the accuseds' concerns may be more apparent than real, having regard to the way the first trial was conducted and to the wealth of physical and scientific evidence and exhibits that make it clear that a considerable amount of Mr Vollmost's blood was deposited throughout the shed as well as elsewhere upon the premises at 79 Cox Street, South Windsor. Be that as it may, I am not satisfied that the receipt of Detective Moon's report would not cause unfair prejudice to the accused. 3. The Crown's application to call Detective Moon is rejected. ********** 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