[2006] NSWCCA 373
IMM v The Queen (2016) 257 CLR 300
[2016] HCA 14
Lane v R (2013) 241 A Crim R 321
[2013] NSWCCA 317
McKey v R (2012) 219 A Crim R 227
[2012] NSWCCA 1
Pollard v R (2011) 31 VR 416
Source
Original judgment source is linked above.
Catchwords
[2006] NSWCCA 373
IMM v The Queen (2016) 257 CLR 300[2016] HCA 14
Lane v R (2013) 241 A Crim R 321[2013] NSWCCA 317
McKey v R (2012) 219 A Crim R 227[2012] NSWCCA 1
Pollard v R (2011) 31 VR 416[2011] VSCA 95
R v Brooks [2017] NSWSC 188
The Queen v Baden-Clay (2016) 258 CLR 308
Judgment (2 paragraphs)
[1]
Judgment
HIS HONOUR: Clarke Brett gave evidence on 19 February 2018 in which he indicated that he was at one time the owner of a 2003 Holden Commodore utility. Some time in March 2015, Mr Brett lent that vehicle to Mr Davies who told him that he wanted the vehicle to clear up some bark and ferns around the house where Mr Davies resided. Mr Brett later transferred the vehicle to his father in about June 2015. Mr Brett's nickname is "Red Slut".
The Crown anticipates that it will shortly lead evidence to establish that Mr Brett's vehicle was driven by Mr Davies and Mr Tilley from Sydney to Dorrigo on the New South Wales north coast on 1 April 2015. The Crown anticipates that the evidence will also demonstrate that Mr Tilley's phone was activated at several locations along the route taken by them. It does not appear for present purposes to be in dispute that the Crown can establish that Mr Davies and Mr Tilley drove the vehicle to Dorrigo on 1 April 2015 as the Crown contends.
On 12 April 2015, Mr Davies and Mr Tilley were recorded by a lawfully installed listening device in a different vehicle having a conversation that includes the following:
DAVIES: I pulled out Red Slut's ute.
TILLEY: Yeah.
DAVIES: (indiscernible)
TILLEY: Yeah.
DAVIES: I couldn't get the (indiscernible) out but. (indiscernible) I didn't realise there was that much weight on it. I got this excavator, eight tonne excavator to pull the cunt out. Still wouldn't, fuck, bro I thought to tyres were going to pop. 'Cause it was loose enough. I thought this cunt would pop the treads easy. Nah mate, the eight tonne excavator, I think it can pull three tonne.
TILLEY: Yeah.
DAVIES: Like three tonne, that's how much weight you can actually can pull, it produces. Nah mate.
TILLEY: Fuck.
DAVIES: Thought the car was going to tear on half.
TILLEY: That's unbelievable bro.
DAVIES: Mmm. (indiscernible)
TILLEY: (indiscernible) and all that.
DAVIES: Oh okay. I was at the carwash for two hours today.
TILLEY: Ammonia?
DAVIES: Ammonia, uh, pre-soak, ammonia, gurney, pre-soak, ammonia, gurney, so it's covered.
TILLEY: That's hectic bro. We've, bro, like I said, we've covered all bases now.
DAVIES: Yeah.
TILLEY: We don't talk.
DAVIES: Yeah. (Indiscernible) Cunt of a road.
TILLEY: Oh bro. It's the fucking worst. Remember how packed this used to be man. It just died bro. It's not the market (indiscernible).
Mr Tilley objects to the Crown adducing this evidence upon the basis that it is irrelevant and that its probative value is outweighed by the danger of unfair prejudice to the accused. He argues that the conversation does not indicate that the vehicle was driven to Dorrigo for a nefarious purpose, such as the transportation of Mr Vollmost's deceased body, or that the vehicle was later cleaned by Mr Davies in order to remove any traces of biological or other evidence that might have supported the suggestion that it had been. Mr Tilley argues that the evidence is so bereft of detail or any specific reference to issues that are alive in these proceedings that it could not be used by a jury for any legitimate purpose but that it would, on the contrary, increase the risk that the jury might descend into unsupported speculation. Mr Stratton of senior counsel for Mr Tilley accepts that the jury will in due course be invited by the Crown to accept the reasonable inference that Mr Vollmost is dead, having not been seen since 31 March 2015, so that the impugned evidence suggesting the possibility that his body was disposed of using Mr Brett's utility adds nothing to the Crown case.
The Crown case against all accused is almost entirely circumstantial. The evidence of the conversation proposed to be adduced by the Crown falls into that category. Its probative value appears to lie in the fact that two of the accused, having within hours of Mr Vollmost's disappearance set out to drive a distance of approximately 550 kilometres from South Windsor where Mr Vollmost was last seen, engage in a conversation some eleven days later that is capable of being understood to concern the thorough cleaning of the vehicle in which they made that trip.
Probative value as defined is a measure of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. The test is not whether the evidence must or will do so.
In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [45], the majority said this:
"The use of the term 'probative value' and the word 'extent' in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge." [Emphasis added]
The Crown case is that Mr Vollmost's body has been disposed of by the accused. The Crown maintains that the conversation in question, coupled with the evidence of the journey to Dorrigo using the utility referred to in the conversation, is a circumstance which, taken with other circumstances, supports a reasonably available inference that it was used for that purpose. The Crown maintains that the unusual thoroughness evidently applied in the cleaning of the utility borrowed for anodyne quasi-horticultural purposes, as drawn from the conversation in question, bespeaks a consciousness of guilt that significantly enhances the probative value of the whole conversation.
It is conceded by Mr Stratton that if there were evidence that Mr Vollmost's body had been located in Dorrigo, or between Sydney and Dorrigo, or if there were some evidence that his body had been in Mr Brett's utility at any time, evidence of the accused discussing cleaning it would be probative. There is no such evidence. The only material suggesting that a body may have been in the rear of Mr Brett's utility is a presumptive indication of the presence of blood from a luminol test. There is no evidence that Mr Vollmost's blood was located there.
Mr Stratton understands in this case that there is no issue that the accused were involved in the moving and disposal of Mr Vollmost's body. Having regard to the evidence adduced by the Crown so far, that understanding is entirely uncontroversial. Mr Stratton anticipated that if the Crown were to draft formal admissions, which would satisfy the Crown's requirements on these issues, the accused would make those admissions. The issue in this case is whether the conduct of the accused (or some of them) amounted to murder.
The case principally relied upon by the Crown is R v Brooks [2017] NSWSC 188. In that case, Hamill J said this at [23]:
"[23] The binding authorities in this state establish that there is no bar to the Crown leading evidence to prove matters that are subject to admissions. However, I accept Mr Boe's submission that the effect of such admissions may mean that a particular matter is no longer a 'fact in issue'. This may impact on the question of whether the evidence is 'relevant evidence' under s 55 of the Evidence Act and also on a proper assessment of the probative value of the evidence for the purpose of ss 135 and 137. 'Probative value' is defined as 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.' In each case, it will be necessary to compare the matters that the Crown is required to prove with the substance of the admission made by the accused. In some cases, it may be that the evidence is no longer relevant because the fact is not in issue in the proceedings. More commonly, it may be that the probative value of the evidence is reduced and, if the evidence would result in an undue waste of time (s 135) or create unfair prejudice (s 137), it may be inadmissible in the exercise of discretion."
Part of the prejudice for the accused is that the admission of this evidence may lead the jury to venture down an impermissible path of reasoning. Mr Stratton submitted that the conclusion, that the accused or any of them were involved in the washing of Mr Brett's car in order to conceal the fact that Mr Vollmost's body had been in it, would only be open to the jury if they were otherwise satisfied that his body had been in the vehicle. He reasoned that there is no such evidence, apart from the evidence that the accused or some of them were involved in cleaning it.
Mr Stratton characterised the Crown's approach to the admissibility of the listening device material as evidence of consciousness of guilt as "unsafe and circular". He highlighted a concern that, by reason of the potential impact of popular fictional depictions of murder, there is a danger that the jury might assume that, because ammonia was used to clean the vehicle, there must have been a corpse in it.
A comparison of that value with the prospect of unfair prejudice in my opinion favours the admission of the evidence. I accept that the prejudice with which s 137 of the Evidence Act 1995 is concerned includes the risk of danger of the evidence being unfair because it may lead a jury to adopt an illegitimate form of reasoning, or to give it undue weight or to make a decision on some basis logically unconnected with the issues in the case. No such risk or prospect appears in my view to arise.
The Crown can rely upon the accused's post-offence conduct as evidence of a consciousness of guilt. This will usually be in the form of a lie or absconding to avoid arrest or trial. But it can also include other forms of conduct: McKey v R (2012) 219 A Crim R 227; [2012] NSWCCA 1. In Pollard v R (2011) 31 VR 416; [2011] VSCA 95, evidence of the accused hiding his mobile phone was admitted on this basis. Such evidence will generally be part of a Crown's circumstantial case or evidence supporting direct evidence such as an admission. In some cases of murder, an accused's post-offence conduct may go to such lengths to conceal or distance himself or herself from the death as to provide the jury with a basis to conclude that the accused had committed an extremely serious crime and to warrant a conclusion beyond reasonable doubt as to the accused's responsibility for the death and the concurrent existence of the intent necessary for murder: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [74]. In Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [111] (cited with approval in The Queen v Baden-Clay at [75]), the court held that the jury were entitled to take the post-offence conduct of the accused into account as evidencing consciousness of guilt of murder.
Possibly significantly in the present case, the mere fact that, as a practical matter, an accused person might think or feel that it would be impossible to resist the prosecution case without taking the risk of giving evidence, would not constitute unfair prejudice: Hannes v Director of Public Prosecutions (Cth) (No. 2) (2006) 205 FLR 217; [2006] NSWCCA 373 at [315]. The position may be different if the accused were able to identify evidence by way of rebuttal that itself attracted a prejudice that was uniquely connected to it. There is no unfair prejudice, however, if the prejudice arises merely from a need for the defence to choose between unhappily competing forensic possibilities.
All accused have maintained their pleas of not guilty to the charges of murder. It remains the Crown's task to prove that offence against all accused. Proof that the accused disposed of Mr Vollmost's body is but one element in a circumstantial case against them. In my view, the listening device material therefore remains relevant to the assessment of the probability of the existence of a fact in issue.
I do not consider that the probative value of the conversation between Mr Davies and Mr Tilley is outweighed by the danger of unfair prejudice to any of the accused in this trial.
[2]
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Decision last updated: 24 October 2019