R v Bentley; R v Thomas; R v Tilley; R v Davies

[2018] NSWSC 67

Supreme Court

New South Wales

Medium Neutral Citation:	R v Bentley; R v Thomas; R v Tilley; R v Davies [2018] NSWSC 67
Hearing dates:	5 February 2018
Date of orders:	07 February 2018
Decision date:	07 February 2018
Before:	Harrison J
Decision:	The Crown’s application to adduce any of the nominated material as tendency evidence is rejected
Catchwords:	EVIDENCE – tendency evidence – murder – where alleged tendency to use violence, or the threat of violence, to collect drug debts or advance a drug supply business – where no significant probative value – where evidence only shows a tendency to make unfulfilled threats of violence
Legislation Cited:	Evidence Act 1995 (NSW) ss 97, 101
Cases Cited:	Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 BC v R [2015] NSWCCA 327 DSJ v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9 El Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10 Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 JLS v The Queen (2010) 28 VR 328; [2010] VSCA 209 R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 at [55] R v Maybir (No.7) [2015] NSWSC 1742 R v Meyn (No.2) [2012] NSWSC 1449 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121 SK v R [2011] NSWCCA 292 Sokolowskyj v The Queen [2014] NSWCCA 55
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 with W Wu (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: The Crown has given notice of an intention to adduce evidence of tendency pursuant to s 97(1) of the Evidence Act 1995. The tendency sought to be proved is the tendency of the three accused Bentley, Tilley and Davies to act in a particular way, namely, to use violence, or the threat of violence, to collect drug debts or otherwise advance a drug supply business. A fourth accused Thomas is not the subject of a tendency notice. However, he seeks a separate trial if the Crown is permitted to adduce the tendency evidence or any of it.

2. The four accused are all indicted on charges that on or about 31 March 2015 at South Windsor in the State of New South Wales, while in the company of each other, they took and detained Brendan Vollmost without his consent with intent to obtain an advantage, namely financial and psychological advantage, and at the time of doing so actual bodily harm was occasioned to him. The four accused are also charged that in the same circumstances they did murder Mr Vollmost. The indictment contains other charges as well, to which it is presently unnecessary to refer.

3. The presently relevant sections of the Crown case statement are as follows.

“2.    At about 10.30pm on Tuesday 31 March 2015, a white Holden Commodore station wagon was occupied by three persons. Bendan Vollmost sat in the front passenger seat, Ronald Byrnes was driving and Brendan Knight sat in the rear passenger seat. The car quickly entered and stopped in the driveway at 79 Cox Street, South Windsor.

3.    This car had been pursued through the nearby streets of South Windsor by a white Hyundai i30 station wagon to the Cox Street address. The Hyundai was driven by William Thomas. Also inside this car were the co-accused Jamie Tilley, Jack Davies and Mitchell Bentley.

4.    Security cameras fitted outside 79 Cox Street were operating and recording at this time. The following events are a combination of this security camera footage and witness accounts.

5.    The deceased and Byrnes quickly got out of the Commodore station wagon and attempted to jump the closed gates to the rear yard. The gates sprang open allowing both men to run into the yard towards the shed. At the same time, the Hyundai stopped directly outside 79 Cox Street. The four co-accused got out and chased the deceased and Byrnes.

6.    The deceased and Byrnes were followed through the gates very closely by Davies. He was armed with an expandable baton. Bentley ran directly behind and in support of Davies.

7.    As this occurred, Knight attempted to get out of the Commodore. However, Tilley prevented him from doing so. Knight was threatened and forced to remain seated in the back of the car. After parking the Hyundai , Thomas ran to assist Tilley and they spoke. Thomas then ran into the rear yard and out of security camera view.

8.    The deceased and Byrnes attempted to take cover inside the shed. However, both men were severely assaulted. Byrnes was knocked unconscious by Davies. Evidence at the crime scene indicates there was a violent confrontation that resulted in the deceased receiving very severe injuries, sustaining substantial blood loss and loss of consciousness. The expandable baton carried by Davies was used to inflict some of the deceased’s injuries. The expandable baton was recovered at the crime scene. Forensic analysis of this weapon has confirmed the blood of the deceased to be on the tip and shaft. William Thomas has the same DNA profile as the DNA profile extracted from the handle of the baton.

9.    Shortly afterwards Thomas returned to Tilley and, after a short conversation, Tilley entered the rear yard. Thomas guarded Knight. Thomas appears to be looking at something on his hands at this time.

10.    As this was taking place, one of the co-accused is heard to yell, ‘He’s still breathing, get him in the fuckin’ car. Is that it, is that all he’s got?’ Shortly after that Davies approached Thomas and appeared to give him certain instructions. Thomas then ran to the Hyundai and the head lights were activated. Davies then guarded Knight.

11.    At this time, Bentley and Tilley emerged from the rear yard carrying the deceased who was unconscious. Bentley is carrying the top half of the deceased and Tilley is carrying the deceased’s legs.

12.    After hearing the commotion, Mr Alex Gorman, a neighbour, approached the driveway of 79 Cox Street. He was immediately confronted by Davies who punched Mr Gorman in the face. Mr Gorman fell heavily to the ground. Mr Gorman suffered bruising, swelling and a small abrasion to the left side of his face.

13.    Bentley and Tilley carried the deceased to the Hyundai and placed him inside. The four co-accused then drove away from the scene in the station wagon driven by Thomas. The deceased has not been seen or heard from since this incident and the Hyundai has not been located.

14.    The death of Mr Vollmost is established by circumstantial evidence including his last known moments as captured by the security footage. Also, the deceased’s girlfriend, step children, family and friends have had no contact from him. The deceased’s personal social media websites have not been accessed and there has been no activity in the deceased’s bank accounts.

15.    Forensic Crime Scene experts have provided an opinion that there was sufficient blood belonging to the deceased located at the crime scene to suggest death would have been imminent if his injuries were not treated. There is no record of the deceased having any treatment for these injuries at any medical facility in NSW. It is the prosecution case that the four co-accused shared an intention violently to assault and kidnap the deceased who then died.”

4. The Crown has helpfully organised the evidence that it proposes to adduce into eight categories. Category five is no longer pressed. Not all of the evidence that the Crown proposes to adduce is to be led against all of the accused. This is made plain in what follows.

Category 1 - all accused

5. The proposed evidence in this category consists of selected portions of statements given to the Crown by a series of witnesses. It becomes necessary to set this material out in full.

Statement of Andrew Moerig dated 10 September 2015

“9.    I cannot remember if it was before or after the raid, but within a couple of weeks I was at the Hawkesbury Hotel on a Tuesday night. I played in the pool competition on Tuesday nights, which started 7.30pm. On this Tuesday night I was in the pokie room having a beer and I was approached by Mitchell Bentley. Bentley was by himself.

10.    Bentley and I went to the last couple of years of high school together. He came in year 9. Bentley’s parents lived on Bulkridge Road at East Kurrajong which was not far from my parents’ place and we would be on the same bus home in the afternoon.

11.    I cannot recall the exact words used by Bentley. He told me that he was part of a group called the Blood Brothers and they were taking over the drug supply in the area. Bentley never said how he knew I was involved in ice. I thought this was a statement, it did not seem like he was asking me to help him out. It was said with a stern sense of confidence. Bentley said that he would show me what type of stuff they had and took my mobile number. I thought it was a bit of a joke at the time. I said something like no worries mate and he left.

12.    A couple of nights later I got a text message from Bentley. He asked me to meet him at the Bligh Park Tavern. I went down to the front car park of the Tavern. Bentley was in a black Ford Territory I pulled up next to him. I cannot remember what car I was driving on this night. I put my driver’s side window down and Bentley put down his driver’s side window. Bentley gave me half a ball of ice and I gave him about $450 to $500. There was very little conversation.

13.    I smoked that with a couple of my mates. I did not like the ice that Bentley gave me. It did not give me the same high and I did not consider it good quality. My mates thought the same. It was not worth the money I paid for it.

14.    Bentley called me a couple of nights later from a private number. I do not know any of my mobile telephone numbers from this time as I was changing numbers regularly. I told him I was not interested as I was not selling anymore, the quality was no good and not worth the money. Bentley was not happy and started getting angry so I hung up the phone straight away.

15.    A couple of weeks later I was at a mate’s place, Rob Pye, having a smoke. About 10.30pm I left my mate’s place and got into my car. I cannot remember the exact car I was driving at the time. I bought a number of cheap $500 to $600 cars and drove them for a short period of time then I would sell them. I would not register them in my name. I do recall driving a white Holden VS or VR model station wagon about this time.

16.    I drove along Mileham Street back towards Windsor. I saw a set of headlights come out of the side street and drive towards me on my side of the street. I turned the wheel and drove up onto the gutter on the wrong side of the road. As I passed the car I could see the car that came at me was a black Ford Territory with twenty two inch chrome wheels. I had seen the same wheels on Bentley’s car when I had got the ice off him at the Bligh Park Tavern. I could not identify anyone inside the car. At the same time a charcoal coloured Ford XR6 ute came up from behind me. I believed that the two cars were trying to box me in. I took off and I turned down the side streets and lost them within a couple of streets. I assumed that the car that had run me off the road was Bentley and it was because I would not be involved in their drug supply.

17.    About a week or two later I was walking in Windsor shops. I was near the ice cream shop near the Macquarie Arms Hotel. I was going into the ice cream shop. A male approached me and introduced himself as Coach. Also with him was another male who introduced himself as Captain. Coach said they were with the Blood Brothers and they were calling the shots in relation to the drug supply. They both told me they were the cars that tried running me off the road. They tried to get me on board and get me to sell or supply for them. I said that I wasn’t doing it anymore and that I wasn’t even using for personal use. I did not want any part of them. I walked off and got back in my car pretty quick.

18.    Coach is about six feet tall, dark hair, shadow beard, dark edgy sort of look, with an assertive personality. He was wearing a shirt and shorts. Captain has a bigger frame with tattoos on his arms and I think he had gold teeth. Coach was older than Captain, and Captain is only a couple of years older than me. I left and I told my missus what had happened. Later that night I looked on Facebook and I looked up Bentley. At the time the profile name was Mitchell Bee but later he changed it to Bee Six. In the friends section I saw a photo of a male who I recognised as Coach. His profile name was Tilley Time. I recognised Captain in photos with Bentley. Under the image was a tag that said Will Thomas. I kept looking in Facebook and found other photographs with tags that had showed Captain as Jack. I never found Captain’s profile on public view. After viewing these photographs I thought they were rock stars with no idea. This was the last contact I had with them.”

Statement of Andrew Moerig dated 12 January 2016

“4.    In paragraph 15 and 16 of my previous statement I described an incident where two cars tried to box me in on Mileham Street, South Windsor. I recall this happened sometime in mid-November 2014. I have been asked to describe this incident in more detail. I recall that one of Brooke’s friends was also in the car with us at the time. I’m not sure of her name but I think it might be Emily. I’m not sure of her sir name [sic, surname]. As I drove out of Robby Pye’s house and down Mileham Street towards Rifle Range Road I noticed the charcoal coloured ute come out of a side street opposite Robby’s house and follow me. It came up the left side of my car and bumped me on the left side of my car which forced me over to the right side of Mileham Street on the wrong side of the road. I did a u-turn and drove back the opposite way on Mileham Street at which time the black Territory came head on to me on the wrong side of the road which caused me to have to drive onto the wrong side and go past him. I drove all the way up to Drummond Street at high speed. I would have been doing about 120km/h along Mileham towards Drummond to get away from them. I turned left at the roundabout and then turned right at the lights onto Macquarie Street. As I turned right my car ran out of fuel so I quickly pulled over and drove up the gutter stopping my vehicle on the nature strip. This was opposite the Post Box Takeaway shop on Macquarie Street, South Windsor. Brooke, her friend and I climbed out of the car and we ran through a vacant block between two houses. We hid in a back street behind the lane and I called my sister Gillian who came and picked us up.

5.    I’ve been asked to add more detail to the incident I described in paragraph 17 of my previous statement where I described an incident that happened near the Macquarie Arms Hotel. I recall this incident happened during the last week of November 2014. That day I had been at the Woolworths supermarket in Windsor with Brooke and we were leaving the area in two separate cars. I was driving my white Holden station wagon and Brooke was driving her white Mitsubishi Mirage. I drove along Baker Street and turned left onto George Street, Windsor where I drove past the ice cream shop which was on my left hand side near the corner of Baker and George Street. I noticed a group of about ten males standing on the footpath outside the ice cream shop. I was only driving slowly as the traffic was heavy. I then saw one of the males come running up to my car. I looked and realised it was Mitchell Bentley. He was yelling something at me as he was running towards me but I couldn’t make out what he was saying. As he ran towards the side of my car he threw his ice cream at my car which landed on the front windscreen. I quickly accelerated and drove on the wrong side of the road and along George Street to get away from him. I thought Brooke would have followed me as she was in her car about three cars behind me.

6.    I turned left at the roundabout and over the bridge and waited for Brooke for about five minutes. Brooke never came so I drove back and saw that Brooke was parked in the car park behind the ice cream shop and Macquarie Arms Hotel and the group of males which included Bentley were surrounding Brooke’s car. The doors of her car were open and people were standing around her car with the car doors open. Brooke was still in the driver’s seat. Bentley ran over to my car and started going berserk elbowing the driver’s door window trying to smash it. Coach and Captain came over to my car which was parked on Baker Street between the entry and exit of the carpark. Bentley, Coach and Captain were yelling at me to get out of the car. It was clear that they wanted to beat me up from Bentley’s actions. I wound the window down five centimetres and said I was calling the police. I dialled triple 0 but then Coach and Captain pushed Bentley away and calmed down. I hung up the phone and spoke to Coach through the window for about five minutes. I asked them to let Brooke go and offered to talk to one of them alone later on. Coach said he knew I was dealing in the area and that he wasn’t going to allow me to deal in their area without dealing for them. He said that it was him and Captain in the Ford XR6 chasing me the other day. He threatened me by saying something about how easy they could get rid of a body by dumping it at sea in a shipping container and that could be me if I didn’t comply. He sounded quite calm when he spoke. I agreed at that point to do whatever they wanted me to do but just to let Brooke go. I gave them my parent’s house number at East Kurrajong but didn’t tell them where I was living.

…

12.    Sometime in January 2015 I met Captain and Coach at the Caltex service station at Berkshire Park to buy drugs from them. On this occasion I had a conversation about several things with them while we both washed our cars. During this conversation Coach told me about how another one of their customers who was an ex Rebel bikie wouldn’t comply with their instructions about dealing ice for them. Coach said that he took this guy out to Port Botany and showed him the shipping containers and threatened him that he would end up in a container if he didn’t do what they said. I took this as a threat as he was using this other guy as an example. I’m not sure of the guy’s name that Coach was referring to but he lives on Macquarie Street, South Windsor two houses up from the Post Box Takeaway shop.”

Statement of Brooke Lye dated 5 November 2015

“8.    One day about the 5th or 6th August 2014 Andrew and I, as well as one of my friends but I can’t remember her name, were at Robby Pye’s house on Mileham St, South Windsor. Andrew was living with Robby before he moved into my house. We were at Robby’s house this day to collect some of Andrew’s belongings. Andrew was working with Robby at this time. Sometime in the afternoon Andrew, my friend and I left Robby’s house in Andrew’s white commodore wagon and drove south west along Mileham Street towards the leagues club. Andrew was driving and I was in the front passenger seat. As we were approaching the intersection of Rifle Range Road I felt a car crash into the back of our car. It wasn’t a very hard hit but enough to notice. Andrew said something like ‘That’s the Blood Brothers. Captain Jack Sparrow.’ I said, ‘Who the fuck are the Blood Brothers and why are they hitting us with their car?’ The car behind us pulled out to the right and started to move up beside our car at the back end and then swerved at us. Andrew moved to the left and avoided a collision. At this time I noticed another car that was coming towards us from Rifle Range Road. I only recall this car being a maroon colour. It came past us and did a u-turn and started to head the same direction as us. Andrew did a u-turn just before the intersection of Rifle Range Road and started heading back the other direction on Mileham Street.

9.    I had my phone out at this time and started to take photos of the cars chasing us. I took a photo of the maroon car as we drove past it. The maroon car had pulled over as though it was going to do a u-turn and follow us. I then started taking photos of the black ute through the back window as the ute did a u-turn and continued chasing us. I saw that the car behind us was a black Ford ute that looked like the paint was faded or dirty. It wasn’t an old ute or a work ute it was like a XR6. I read the number plate and told my friend to write the number down. As we did the u-turn and drove past the ute I could see the driver of the ute as his window was down about a third of the way. I would describe him as Caucasian, short hair and large upper body. I could see he had a passenger next to him. He was Caucasian, skinny and had some facial hair.

10.    We drove at high speed down Mileham Street and beeped the horn as we drove past Robby’s house. We went straight through the stop sign at Woods Road and kept going along Mileham Street. We overtook another car on Mileham and then turned left at Drummond Street at the roundabout. We then turned right against a red traffic light on Macquarie Street. As we got onto Macquarie Street the black ute hit us again from behind and we ran off the road and up the kerb where we stopped right next to a traffic light pole. The ute kept driving down Macquarie Street. Andrew couldn’t open his door because it was right up against the pole. Andrew started to climb out of the car on my side and I got out after him. My friend got out also and we ran through a vacant block that was about 100 metres from the intersection of Drummond Street. We then ran down Dickson Lane and back across Drummond Street where we hid in the lane and called my mum to ask her to come and pick us up. Andrew also called his sister, Gillian, who was at Robby Pye’s house. Gillian then came and picked us up and we went back to Robby’s house. When we got to Robby’s house Andrew got a phone call and it appeared he was talking to the guys who were chasing us. At some point during the call Andrew put the phone on loud speaker and I could hear the person he was speaking to had an Irish accent. I left Robby’s house and Andrew was still on the phone. I started to walk to my mum and dad’s house but they came and picked me up and took me to their house. I told my mum and dad that some guy tried to run us off the road.

11.    I got a text message from Andrew saying he was going to meet up with the Blood Brothers to diffuse [sic, defuse] the situation.

12.    A few hours later Andrew came to my mum and dad’s house. Andrew told me that the Blood Brothers were drug dealers and they were taking over the Hawkesbury area. He said that after I left him at Robby’s house he went to see them and spoke to them. He said that the Blood Brothers told him that Brendan owes them money for drugs and Andrew owes Brendan money for drugs. So in order for Brendan to be able to pay back his debt Andrew would have to start selling drugs with Brendan. Andrew told me that this was bullshit because he didn’t owe Brendan any money but was forced to help Brendan.

…

29.    Sometime towards the end of November 2014 Andrew bought a white Commodore wagon for $400. He bought this car which still had registration because his red Commodore ute had run out of rego. The day we picked this car up I drove Andrew in my mum’s Mitsubishi Mirage to pick the car up. After Andrew picked the car up I went to visit my mum and then went to meet Andrew at the Macquarie Arms Hotel in Windsor for lunch. We had a drink and played the pokies at the hotel. When we left Andrew drove his car out of the car park in front of me onto Baker Street. I followed him and was driving behind Andrew. We both turned left onto George Street and past the front of the hotel. As we drove past the front of the hotel I saw Bentley, who I have seen before when Andrew had pointed him out in the area, come running from the hotel towards Andrew’s car yelling, ‘That’s Moerig’. I saw Andrew accelerate and go around two cars that were in front of him to get away from Bentley. I didn’t think that they would recognise me but then I saw their black ute pull up behind me. Coach walked up to my front passenger door and said through the window, ‘I suggest you go back around to the car park’. I was scared that if I didn’t do what he said they would chase me and hurt me. I was also pregnant at the time so I drove left onto Thompson Square, left onto the Terrace, left onto Baker Street and then parked in the car park of the hotel. The black ute followed me. When I parked my car in the car park Coach came to my car door, opened the door and crouched down to talk to me. He said, ‘Do you know who we are?’ I said, ‘Yeah, the Blood Brothers’. He said, ‘Yeah we are.’ As he said this he held both his hands up with his knuckles together and underside of his palm facing me. I saw he had a tattoo on either hand. One that said ‘Blood’ and the other that said ‘Brothers’. He said, ‘Where’s Andrew going?’ I said, ‘I don’t know. Probably home.’ He said, ‘Where’s that?’ I said, ‘I don’t know’.

30.    The black ute that was following me pulled up behind my car and parked in a car space. Coach said, ‘Get out of the car’. I got out of the car and saw the passenger window of the black ute was down and I could see Captain Jack in the front passenger seat. Captain said, ‘Where has Andrew gone?’ Coach said, ‘She won’t tell us’. The ute drove back out of the car park. I noticed that the driver of the ute was the same person who was the passenger in the ute in August when they chased us.

31.    Then Coach said, ‘That’s nice of your man to leave his pregnant missus here to be taken away and put in a shipping container to die.’ I said, ‘What does that mean?’ Coach said, ‘He knows what we are capable of doing.’ I said, ‘Well why would he come back if you’re like that.’ I then noticed Bentley and three other guys who I have never seen before standing near a Mitsubishi Evo and a BMW that were parked in the car park. One of the guys called out ‘Get his number’. Coach said, ‘Give me his number’. I said, ‘No I’m not giving you his number’. I had my phone in my hand which Coach took from me and started going through it.

32.    At this time Andrew pulled up in his car across the entry to the car park and said through the passenger window, ‘Brooke. Get in your car and go.’ As I went to get back in my car I saw Bentley rush over to Andrew’s car. Coach followed me to my driver’s door. I grabbed my phone out of his hand and Coach turned around and ran towards Andrew.

33.    I got into my car and drove out of the car park. I stopped at the exit onto Baker Street and called out to Andrew to drive in front of me. Andrew told me to go and said he would be okay. I drove onto Baker Street and stopped so I could see Andrew in my rear vision mirror. Andrew waved me to go which I did. About five minutes later Andrew called me and said he would be home soon and he was okay.

34.    When Andrew got home he said that they gave him a phone number for him to contact and if he didn’t start obeying their rules and selling drugs for them there would be nowhere in the Hawkesbury to hide.”

Statement of Gillian Moerig dated 21 April 2016

“21.    I recall one night after I had been at work Wade and I decided to stay at Mileham Street with Robert Pye and Carol. I recall earlier in the night Andrew and Brooke visited and were hanging out in the back shed. I was still wearing my work uniform and was coming and going from the shed and getting things ready for work the following day. After Andrew and Brook left I think it was just Wade, Robert and Carol who were at the house. I can’t recall anyone else being there. I went to bed about 9pm and was woken about an hour later by a phone call from Andrew telling me to urgently come and get him from the netball courts as he was being chased and was on foot. I got up and got in my car and headed towards the netball courts. I didn’t get time to tell anyone where I was going I just left. Andrew sounded like he was in such a panic. I called Andrew when I got to the roundabout on Mileham and Drummond Streets and he gave me directions to where he was. I went left at the roundabout and through the traffic lights on Macquarie Street and as I was driving down Drummond St I heard someone yell ‘Stop’. I stopped the car in the middle of the road and all the doors of my car opened. Andrew, Brooke, Ricky Lewis, Ricky’s partner Angela and another female who I don’t know, got into my car. Andrew said that Volly and the Blood Brothers were following him and had tried to run him off the road. Andrew said his car died and that’s when he called me. Andrew said that Volly had put a ten thousand dollar bounty on his head to be killed. This is all I got out of Andrew at this time. Andrew was in [sic] extremely frightened and stressed out. So was everyone else in the car.

22.    I turned onto George Street and followed it all the way to Riflerange Road where I turned left. I made another left into Mileham Street and was planning on going to Robert Pye’s house. I was driving at the speed limit at this time. As we were driving along Mileham Street someone noticed a car following us. I could see a car behind us but I couldn’t see what type of car it was. Someone said it was the Blood Brothers and Volly in the car so I accelerated to a speed of about 100km/h along Mileham Street. The car that was behind us also accelerated and was catching up to us at this speed. Someone said not to stop at Robert Pye’s place so I kept driving. I turned left at the roundabout on Drummond and then right onto Macquarie Street. The car that was behind us was no longer following us. I saw Andrew’s white station wagon on the side of the road opposite the Post Box Takeaway on the nature strip. Andrew said he left some things in the car that he needed to get at some point. Andrew then said that our friend Darren was behind us and asked me to pull over. I did a u-turn and stopped outside the Post Box Takeaway. Darren also did a u-turn and stopped behind us. Darren was driving an old gold coloured sedan. Everyone got out of my car and into Darren’s car. As they were getting into Darren’s car I saw a large black four wheel drive coming towards us along Macquarie Street. It was driving really slowly, like about 20km/h. I recognised this car as one of the Blood Brothers’ cars which Volly was meeting at the Bligh Park Tavern. I could not see anyone through the windows but it kept driving along Macquarie Street. It sped up as it passed Darren’s car.

23.    I drove back to Robert Pye’s house by turning left at Drummond, and right into Mileham Street. At some point when I was picking up Andrew and the others I called Wade to tell him what was happening. I think he must have gone for a drive in his mum’s car looking for us because when I got to Robert Pye’s house Wade was not there but he turned up a short time later. About 10 minutes after I got back Andrew and the others arrived. Everyone was in the shed and freaking out. Andrew was talking about problems he was having with Volly which is why he believed Volly and the Blood Brothers were after him. Andrew talked about how they tried to run him off the road. After hearing this I decided to go to bed. I heard Andrew and Brooke leaving a short time later before I had fallen asleep.”

Statement of Ronald Byrnes dated 16 September 2015

“7.    A couple of weeks later I was at Richmond at Anne-Marie Ives’ house. She was a friend of mine at the time. It was after 11.30pm when I received a call from Volly who said, ‘We need to line up Andrew to get money off him.’ I said, ‘No’. I said this a few times. Volly was talking to a person in the background and then relaying back to me what he said, ‘They will give you the two hundred that you owe Andrew to use to lure him out. You keep the two hundred and they will get Andrew.’ I said, ‘Okay’.

8.    I made a call to Andrew and asked if I could meet him to pay him back his two hundred dollars. Andrew said to go to Richmond McDonalds and meet his mate Darren who would be waiting and then Darren will bring me to Windsor to meet Andrew.

9.    About ten minutes later I got a phone call from Volly who said he was outside. I went outside where I met Volly who was in the passenger seat of a dark grey Ford ute with a roll bar between the cabin and the tray. I spoke to Volly through the window and saw there was a male person in the driver’s seat. I couldn’t see this person properly because it was dark. I said ‘I’ve got to go to Richmond McDonalds to meet his mate Darren who will take me to meet Andrew at the 7/11 South Windsor.’ Volly gave me two hundred dollars and said, ‘You go and meet Darren and we’ll follow you to Windsor. There will be a couple of cars following’.

10.    I took the money from Volly and walked to Richmond McDonalds where I met Darren who is a very fat guy, Caucasian, covered in tattoos, shaved head with tattoos on his head and a large burn scar on his upper leg. He was driving his mum’s VY silver Commodore sedan. I got in the car with him and noticed he was acting a bit strange. He was texting someone as he was driving and driving real slow. He drove to South Windsor 7/11 on George Street and parked near the pump. We waited there for about twenty minutes for Andrew to turn up but after waiting I got out of the car and sat on the guard rail. I felt uneasy and thought something was not right so I started to walk away when a guy pulled up in a red Crewman ute and called out to me, ‘Get away from that fat cunt and get in here’. I didn’t know this bloke by name but knew he was a mate of Volly. I said, ‘No fuck off’. I walked into the service station when I got a call from Volly saying, ‘Get in the red car with Broc’. I walked out of the service station and got in the car with Broc. It was just Broc in the car. I still don’t know Broc’s last name but I know he is a good mate of Volly’s. Broc told me that Volly and the Blood Brothers had found Andrew and had been chasing him around. We picked Volly up from somewhere but I can’t remember where. Volly said that they chased Andrew in his white VR Commodore wagon but he pulled up at the Post Box Takeaway in South Windsor where he had twenty mates waiting there for him. When they saw Andrew with his mates Volly and the Blood Brothers kept driving past in their cars. We drove around South Windsor looking for Andrew again.

11.    Volly then realised that he left his bag in the dark grey Ford ute he was in earlier. Volly made some calls and we drove to Schofields Train Station where we saw the dark grey Ford ute in company with three other cars. There was a white Range Rover, a black Ford Territory with chrome wheels and another car that I can’t recall. Volly went to the Ford ute and came back with his bag.”

Statement of Trent Finnemore dated 20 November 2015

“14.    A few days later Brendan showed me text messages he said he received from Captain saying something similar to, ‘You have to get me a new front end to my car because I tee boned Andrew and wrecked my car’. Brendan said he got further messages from Captain asking him to go and steal a car for him to get replacement parts. Captain even gave Brendan the address where to get the car. Brendan looked at a map and showed me where the car was that he was asked to steal. It was on Berger Road, Bligh Park.”

Statement of Kaine Alderton dated 22 September 2015

“8.    One evening around the end of July and the start of August 2014 Gillian left the house in her red XR6 Turbo. It was a weekend because I was at home and not at work where I did night shifts. When she left Wade and I were inside the living room and heard a loud car take off after her. We ran outside and saw Gillian turn around and drive back past the house. As she drove past the house I saw a silver Holden Commodore sedan following Gillian’s car at high speed flashing its headlights at Gillian.

9.    Wade received a phone call from Gillian at that time. Wade got off the phone and told me that Gillian said some people were chasing Andrew and were now chasing her. Wade and I got into Wade’s mum’s car and drove around looking for Andrew and Gillian. Wade was calling them as we were driving.

10.    We got hold of Andrew who said he was hiding so we went to the South Windsor area where we picked up Andrew and a male and female who were with him. I don’t know who they were. Andrew said he had been chased by a couple of cars. Wade dropped me off at home and later Wade and Andrew returned to the house. Andrew asked me to go to his car and get his things out which he left on Macquarie Street, South Windsor. I drove to the car and got his belongings and returned home. I didn’t know who Andrew had been chased by until sometime later.”

Statement of Robert Pye dated 5 July 2015

“7.    About six months before Volly went missing I was at my home with Carol, Wade, Gillian Moerig, and Kaine Alderton, who is Wade’s cousin. Andrew Moerig came over with his girlfriend Brooke Lye, Ricky Lewis and Ricky’s girlfriend. They were in a white wagon which was Andrew’s car. Sometime after dark Andrew, Booke, Ricky and his girlfriend left my house in the white wagon. Not long after that Gillian left my house in her car. I asked Wade where Gillian had gone. Wade said he didn’t know.

8.    About five minutes later Wade and I were standing at the front door when we saw Gillian’s car come flying up Mileham Street heading towards the Leagues Club. She went straight past my house and out of sight. I didn’t notice anyone following her. I told Wade to call her to find out what was going on. Wade made a phone call and then said ‘She is a bloody idiot. She has gone up to get Drew.’ We call Andrew Moerig ‘Drew’. I said ‘What do you mean?’ Wade said, ‘They have tried to run him off the road’. I said, ‘Who?’ Wade said, ‘The Blood Brothers’.

9.    Wade and Kaine left my house in Carol’s car and at some point Gillian came back to my house with Ricky and his girlfriend. I don’t recall Andrew and Brooke coming back with them. I spoke to Gillian and she said that the Blood Brothers were after Drew and tried to run him off the road and that there was two or three cars involved.

10.    Wade and Kaine came back to my place. I spoke to Andrew by phone. I can’t recall if I called him or he called me. Andrew appeared pretty calm at this stage as he usually is. I asked him what happened and he said, ‘They just tried to run me off the road.’

11.    Wade and Kaine told me that they had to go to Andrew’s car to get Ricky’s girlfriend’s handbag out. I drove Gillian’s car which is a Ford Falcon sedan with Wade and Kaine to Macquarie Street near the Post Box Takeaway shop. I saw Andrew’s car parked opposite the takeaway shop on the grass where there is a vacant block. Kaine ran across the road and got the handbag out and came back. We drove back to my place.”

Statement of Jamie Martin dated 6 February 2017

“4.    I recall one night sometime in late 2014 when I was trying to buy some drugs off a guy named Andrew Moerig. Kylie, a mate of mine at the time named Daniel Collins and I met Andrew at the 7/11 on Hawkesbury Valley Way, Windsor and we gave him some money for him to go and get some drugs for us. I put in $100 and I’m not sure how much Daniel and Kylie put in but we were all buying off Andrew together. We were driving in Kylie’s green hatchback. I think Andrew was driving his blue VE Commodore.

5.    We drove down to near the Windsor Leagues Club where we waited on the side of the road on George Street for Andrew to come back with the drugs. After about 20 minutes I saw Andrew’s car being chased by a charcoal coloured ute along Rifle Range Road near the intersection of George Street. I remember one of their cars tyres were screeching as it went around the corner into Rifle Range Road from George Street. I can’t remember where they drove from this point. I had no idea what was going on.

6.    A short time later Daniel received a text message from Andrew asking us to come and meet him. We drove around the back street of South Windsor and we eventually met Andrew near the RSL Club. Daniel and I got out of Kylie’s car and into Andrew’s car. Andrew was white as a ghost and looked really scared. Andrew started driving and said he got chased by Volly and Captain. Andrew said to me to look out for any cars following us. Andrew was looking all around him as we drove through the back streets. We were driving trying to find somewhere to buy drugs. I was wondering why Volly was chasing Andrew as Volly was my mate as well. I didn’t know who Captain was at this time. We weren’t able to get drugs that night and never got our money back either. Andrew drove me and Daniel back to Kirra Place where we were staying at that time.”

Category 2 - Tilley

6. The proposed evidence in this category consists of selected portions of two statements given to the Crown by two witnesses. Although the Crown has nominated the whole of these statements, not all of the material is relevant to the tendency issue. Doing the best I can it seems to me that the following extracts adequately reflect the Crown’s concerns.

Statement of Sing Mok dated 5 July 2017

“20.    About a month after I last spoke to Jamie he caught up with me when I was at Michael and Jemma’s. It was late in the afternoon early in the week either a Sunday or Monday. I recall at this time I had arrived at their house about twenty minutes prior and was in Michael and Jemma’s bedroom sitting on their bed taking drugs with Michael. At this time Jamie walked into the room. I don’t know how he got into the house or how he knew I was there. Jamie said, ‘Get in the car.’ I hesitated because I was in shock. Jamie then said something along the lines of, ‘Don’t cause a scene at this house and just get in the car.’ I took this to mean that he was advising me not to resist his demand for me to come with him in the car as there were other people and children in the house. I was very scared at this time as I didn’t know what he was going to do to me or where he was going to take me.

21.    I stood up and walked out to the front of the house with Jamie as I feared he may get physical with me if I didn’t. I felt as though I had no other option than to go with him to maintain my safety. At this time Michael, Jemma, their children and I think Jemma’s mother were also at the house. I didn’t speak to them before I left.

22.    When I got outside I saw a light coloured four door sedan parked on the side of the road at the front of the house. I didn’t recognise the car as one I had seen before. Jamie told me to get into the car. There were three other people in the car that I did not recognise. One of them was in the driver’s seat and there were two males in the back seat. One of the males in the back seat got out and I sat in the middle of the back seat with the two males either side of me.

23.    The males were all medium to well-built guys. I am only small stature so they were all much larger than me. I can’t recall anything specific about them. I don’t think I would be able to recognise them now if I saw them as it was a long time ago.

24.    The guy on my left elbowed me quite hard to the side of my chest. I felt pain but it didn’t leave a mark. It made me feel more scared for my physical safety and what was going to happen to me. Jamie said something like, ‘Do you have my money?’ I said, ‘Not yet but I’m working on it.’

25.    They started driving and there was very little to no conversation along the way. They drove me to my parents’ house at 50 Metella Rd, Toongabbie and parked in the driveway. I didn’t know why they were taking me to my parents place. They kept me seated in the back of the car with the two guys either side of me. One of the guys in the back seat took my phone and wallet off me and they passed it around in the car. I don’t know who ended up with it. Jamie was quite angry and he spoke very assertive and directly to me. He was not aggressive or loud in voice but he was very intimidating. He said I had to come up with the money and suggested I borrow it from someone or get it from my parents.

26.    I told Jamie that I didn’t have any money and wasn’t able to borrow from anyone right now. They kept me in the car for about 10 minutes and Jamie kept asking me to find a way to get the money. Jamie then said words similar to, ‘You have until this Friday to get five grand to me or next time we won’t be bringing you back here.’ I took this as a threat that he would take me somewhere else next time he got hold of me and possibly hurt me if I didn’t have the money. I wanted to ask why the debt was $5000 but I was scared that if I did it may anger him more. Jamie said, ‘Don’t even think about calling the cops.’ They let me out of the car but he kept my phone and wallet. My wallet had my driver’s licence and a small amount of cash but I can’t recall how much. My phone was a top of the range for that time Sony Ericson brand. It was a smart phone and had a crack at the top of the screen. The phone was given to me by my friend Michael from Greystanes.

27.    I walked to Greystanes where I collected my belongings and moved out of that house. When I was there I saw Michael and Jemma but didn’t talk to them about what happened. I never saw Michael or Jemma again. I had my suspicions that they may have played a part in giving up my location to Jamie. I moved back to my parent’s house as I didn’t want to hide from him anymore. I made arrangements with a family member to borrow $5,000 to pay Jamie.”

Statement of Joshua Carlino dated 4 August 2017

“8.    I have been asked if I am aware of any instances in the past when Tilley had used intimidation to recover debts owed to him. I recall an occasion when Tilley asked me and Simon Khoury to come with him to recover a debt.

9.    I can’t recall exactly when it was but it was about two years before Brendan Vollmost went missing. It was before Jack, Will and Bentley got involved with the Blood Brothers. I recall I was at work at the BP Service Station when Tilley drove into the BP with Simon Khoury. Tilley said words the effect of, ‘Come for a drive with Simon and I just around the corner to see a bloke who owes me some money. If he doesn’t pay me I am going to take his cars’. Simon said to me, ‘Whatever happens you don’t get out of the car’. I didn’t know who Tilley was talking about who owed him money but went with Tilley and Simon.

10.    I can’t recall which car we went in but it was the car that Tilley and Simon arrived in. It was clear to me that Tilley wanted some people to come with him to intimidate the guy who owed the money.

11.    We drove from the BP service station at Toongabbie to a house at 66 Beresford Road, Greystanes. I have pointed this out to Detective Bartle. We parked out the front of the house on the street. Simon and I waited in the car and Tilley got out. I saw Tilley walk up to the house and walk in the front door. I couldn’t see if he knocked on the door or was let in by someone.

12.    A couple of minutes later Tilley walked back to the car with a skinny Asian guy who had spiky hair. Simon got out of the car and the Asian guy got in and sat in the middle seat in the back. Simon got back in the car and sat next to him so the Asian guy was between me and Simon. Tilley got in the driver’s seat and started driving. I could see the Asian guy looked very scared from the expression on his face. Tilley was talking to the Asian guy while we drove. Tilley said words to the effect of, ‘I told you I am not a push over. The people you are sitting next to are not your average people. Because I’ve had to go and get these guys to come with me it’s going to cost you more.’ The Asian guy didn’t say much but was cooperative.

13.    I recall Tilley saying to the Asian guy, ‘How much money have you got on you now?’ The Asian guy said, ‘Nothing’. Tilley said, ‘You’ll happily go out and buy drugs so you must have money but you won’t pay me what you owe. You’re a junkie.’ As he said this I noticed the Asian guy had a newish looking smart phone in his hand. I said, ‘Give me the fucking phone.’ The Asian guy game [sic, gave] me the phone and I put it in my pocket. Tilley said to the Asian guy ‘If you don’t have any money for me I’m taking your cars.’ Tilley was talking to the Asian guy with a firm tone and raised his voice a few times.

14.    Tilley drove the car to the Asian guy’s parent’s house at 52 Matella Rd, Toongabbie which is on the corner of Portia Rd. I have pointed this house out to Detective Bartle. Tilley parked in the driveway and got out of the car and walked to the house. Simon and I remained in the car with the Asian guy for a couple of minutes while Tilley was gone.

15.    Tilley came back to the car with the Asian guy’s mum and dad. Tilley stood about five metres in front of the car with the Asian guy’s mum and dad. I could hear some of their conversation as Tilley spoke to them. Tilley was talking with a more relaxed tone and I only heard him raise his voice once while talking to them. I heard Tilley say words to the effect of, ‘Your son has been dealing ice, smoking it and not paying for it. He owes me money.’ The general conversation was Tilley asking the parents to find a way to pay the debt. I heard Tilley said, ‘If you can’t find a way I am going to take your cars.’ I could see there were several cars in the yard at the house. I saw them from where I was seated but also as we drove past the house I could see cars in the rear yard. I can’t recall what sort of cars they were.

16.    As Tilley was talking to the parents Simon said to the Asian guy, ‘See what you are putting your parents through. You’re a fucking piece of shit. Get off the gear. Clean your act up.’ Simon was talking to the Asian guy very firmly but never touched him.

17.    After about fifteen minutes I could see the Asian guy’s mum was getting very distressed and looked like she was about to cry. Simon got out of the car and told the Asian guy to get out of the car. Simon spoke to Tilley and told him that he had made his point and they should go. Tilley and Simon got back in the car and we left. Tilley didn’t get any money off the Asian guy or his parents but Tilley said the parents agreed that they would pay his debt but needed time to get the money together.

18.    Tilley drove me to my house in Girraween. When I got out of the car I gave the Asian guy’s phone to Tilley.”

Category 3 – Tilley and Bentley

7. The material in this category consists of an extract from a listening device transcript recorded on 7 June 2015 of a conversation between Mr Tilley and Mr Bentley. The portion relied upon by the Crown includes the following:

“Tilley:    Bentley, you free tomorrow man?

Bentley:    What’s tomorrow, Monday?

Tilley:       Yeah.

Bentley:    Yeah, should be.

Tilley:       Do you reckon you can give me and jack a hand for a little bit?

Bentley:    Yeah, doing what?

Tilley:       Um…

Bentley:    Who we bashing?

Tilley:    …nah, nah, nah, nothing like that bro. What are we launching? Um…”

Category 4 – Tilley, Bentley and Thomas

8. The material in this category consists of an extract from a listening device transcript recorded on 19 June 2015 of a conversation among Mr Tilley, Mr Bentley and Mr Thomas. The portion relied upon by the Crown includes the following words spoken by Mr Bentley:

“I said, like, if there’s one fuckin’ fake 50 or 100 in it, I’ll cut your fingers off. He goes, Oh bro you got me, you got me fuckin’, you got me stressin’ now, like I’ve checked ’em all, I’m, I’m pretty sure they’re all sweet. I knew he was spendin’ them.”

Category 6 - Bentley

9. The material in this category consists of a series of text messages sent by Mr Bentley to two people on eight separate occasions between 23 July 2015 and 28 July 2015. The last item consists of Mr Bentley sending a picture of a tattoo on his left calf on 17 August 2015. The text of the eight sms messages are as follows:

“Yeah bro I know im just a bitch but I got ur back if u ever need to towel sum cunt u no that lol.

Haha love ya bro sick kunt. Id never bring you into anything like that. Plus it would prob’s gross you out bro I get a bit lost in the moment and try break arms once they’re knocked out and cut fingers off and shit. We live in 2 different worlds bro and you don’t really wanna get stuck in mine.

Blood is blood for the right reason id hand you the knife but that cunt would of done something bad otherwise ur right bruz im christian.

Enough of this topic any ways bro you dont need to find out how fucked up I am haha. But! Never ever let someone stand you down bro id be there in a heart beat if you ever needed me remember that.

Please do bro. Find out as much as possible for me. Im gonna be going door knocking tomorrow night looking for him.

He’s a piped out kunt but he makes me money. He never goes mia like this but. He’s prob gonna cop a hiding.

Na im not worried. I want my 700 dollars the kunt owes me haha.

Im going to take his rolex collection haha. Im bout to change my sim card bro and I wont message your number until you have a new sim card as well so just message my good phone just no biz talk till I give you the new sim tomorrow.”

Category 7 - Bentley

10. This category consists of the whole of a single statement dated 14 October 2016 given to the police by Grant McDonald. No attempt has been made to limit or refine the parts of this statement that the Crown contends could qualify as tendency evidence. The only material in the statement that appears even remotely to be relevant to the present inquiry are the following paragraphs:

“23.    I remember some time around the end of March or start of April 2015 I heard through the news that a guy was kidnapped in Windsor. I think the news said it was drug related. I didn’t hear much about it. A short time after that incident I bought two eight balls of ice from ‘Smallzy’. I didn’t have enough money to pay for both so I paid $700 and got the other $900 on credit.

24.    The next time I met with ‘Smallzy’ we met at the Oasis pools in South Windsor. I met with him to buy more ice. I paid him the $900 I owed him and the money for the amount I was buying that day. I spoke with him about the $900 credit from the last transaction. He wasn’t happy that I got ice on credit because he had been done before. He told me that I needed to make sure I paid him on time from then on. When we were talking about it he told me, ‘you don’t want to end up like that guy in South Windsor’. When he said that I realised he was referring to the incident I had seen on the news. At the time I didn’t know who was kidnapped or if ‘Smallzy’ was involved in any way.”

11. This category also includes the last three text messages listed in the previous category.

Category 8 - Bentley

12. The material in this category consists of a picture of a tattoo on Mr Bentley’s left calf. It depicts an image of four hooded men in various poses holding firearms. Written above these figures are the words “When it’s about our family”. Below these figures the wording continues saying “We are ready for WAR”.

Applicable legal principles

13. Section 97 of the Evidence Act provides as follows:

“97 The tendency rule

(1)    Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a)    the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and

(b)    the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2)    Subsection (1) (a) does not apply if:

(a)    the evidence is adduced in accordance with any directions made by the court under section 100, or

(b)    the evidence is adduced to explain or contradict tendency evidence adduced by another party.”

14. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of a fact in issue to a significant extent: Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20 at [16] per Kiefel CJ, Bell, Keane and Edelman JJ citing IMM v The Queen (2016) 267 CLR 300; [2016] HCA 14 at [46] per French CJ, Kiefel, Bell and Keane JJ.

15. Striking similarity is not a necessary pre-condition for admissibility. Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear a similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the Court’s assessment of operative features of similarity with the conduct in issue: Hughes v The Queen at [39]. Nor do the acts relied upon need to be rare or unusual: see Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [87] quoting R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 at [126]; BC v R [2015] NSWCCA 327 at [99].

16. It is clear, as in Hughes itself, that tendency evidence can be admitted in circumstances where the evidence bears similarities and dissimilarities to the conduct the subject of the charges. Much will depend on what the dissimilarities relate to.

17. In Hughes at [39] the following appears:

“In criminal proceedings where [tendency evidence] is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend on a close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.”

The present case is not one where only identity is in issue in respect of a known offence.

18. It is also well established that when assessing probative value, the Court should not look at an individual item of tendency evidence in isolation. The Court should have regard to all of the evidence sought to be adduced by the Crown. This flows from the terms of s 97 itself which contemplates that the court will have regard to “other evidence adduced or to be adduced” by the party seeking to tender the evidence: see too BC v R at [82] per Beech-Jones J; R v Maybir (No.7) [2015] NSWSC 1742 at [19] per RA Hulme J.

19. The significance of the probative value of the tendency evidence must depend on the nature of the facts in issue to which the tendency evidence is relevant, and the significance or importance which that evidence may have in establishing those facts. The evidence must be influential in the context of fact finding: IMM v The Queen at [46].

20. Probative value is defined in the Dictionary to the Evidence Act as “the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue”. It follows that, generally speaking, it is no part of the Court’s function to assess the credibility or reliability of the evidence. This is the province of the jury: R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 at [60]; DSJ v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9 at [56]; R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121; R v Meyn (No.2) [2012] NSWSC 1449 at [7] per Beech-Jones J. The Court should take the evidence at its highest: IMM v The Queen at [43], [52].

21. However, there may be “a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury”. In such a case “its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance”: IMM v The Queen at [39].

22. In IMM v The Queen, French CJ, Kiefel, Bell and Keane JJ said at [46]:

“The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue in which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact finding.”

23. In Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 at [76] per Sackville J (with whom Whitlam and Mansfield JJ agreed) said:

“The probative value of the evidence as tendency evidence must depend on the circumstance of the case. The factors to take into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue occurred.”

24. A matter that is relevant to the strength of the tendency inference that can be drawn from the evidence is the generality of the alleged tendency evidence. In El Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [72], Leeming JA said:

“The specificity of the tendency directly informs the strength of the inferential mode of reasoning. It is easy to see why. It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much, as to whether he stole a particular car the subject of a charge. It is quite another to say that a man has a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole and burnt a black Porsche.”

25. In Sokolowskyj v R [2014] NSWCCA 55 at [41]–[42], Hoeben CJ at CL (with whom Adams and Hall JJ agreed) said:

“[41]    Another difficulty for the Crown in establishing significant probative value for the tendency evidence was the marked dissimilarity between the conduct relied upon to establish the tendency under the offence under consideration by the jury. …

[42]    In Dao v R [2011] NSWCCA 63, Simpson J (with whom Kirby and Schmidt JJ agreed) said in relation to that issue

‘180 … Similarity or dissimilarity in the nature of the conduct alleged is relevant to the assessment of both whether the evidence has probative value, and if so, whether it is significant. If the evidence has significant probative value (and, in a criminal case subject to s 101) it is admissible.’”

26. Section 101 of the Evidence Act provides as follows:

“101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2)    Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3)    This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4)    This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.”

27. The concept of “prejudicial effect” is to be understood in substantially the same way as “unfair prejudice” as the latter term is used in s 137, namely that there is a risk that the evidence will be misused by the jury in an unfair manner: Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 at [192]: R v Ford at [55] and Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [57].

28. The unfair prejudice is not that the evidence is harmful to the interests of the accused because it tends to establish the Crown case. If that were so, then the more powerful evidence was in showing the guilt of the accused, the greater would be the difficulty of the Crown in putting the evidence before the jury. Rather, the unfair prejudice referred to in s 137 is harm to the interests of the accused that is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way: R v Ford at [56].

29. It is legitimate and appropriate to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect: Hughes v R at [192] citing Dao v R [2011] NSWCCA 63 at [171] per Simpson J.

30. It is not improper, and thus not prejudicial, for a jury to reason that if the accused has demonstrated the alleged tendency he or she is more likely to have committed the offences alleged. On the contrary, this is the very reasoning that underpins tendency evidence and the very basis upon which it is admitted: BC v R at [81] per Beech-Jones J.

31. Further, in most cases, provided s 97(1)(b) is satisfied, it is to be expected that the risk that the jury would be “emotionally affected” by the evidence of other conduct such that they would disregard the accused’s version of events and not afford the accused the benefit of any reasonable doubt, can be accommodated by giving appropriate directions to the jury: BC v R at [81] per Beech-Jones J.

32. As Latham J said in SK v R [2011] NSWCCA 292 at [34]:

“Notwithstanding these submissions, the applicant did not identify how the risk of misuse of the evidence by the jury could arise. It is no answer to make general statements about the arousal of prejudice. A jury’s antipathy towards an accused, assuming that the accused is guilty and failing to properly consider a defence are all potential by-products of tendency evidence. In that sense, the nature of tendency evidence is inherently prejudicial, hence the need for strong directions, including the requirement that the tendency evidence be proved beyond reasonable doubt. It is not however, prejudicial simply because it tends to prove the commission of the offences. That constitutes, subject to proper directions, appropriate use of the evidence, not its misuse.”

Crown case theory

33. The Crown case is that the four accused were a close knit group. They considered themselves to be family. They had formerly been part of a group called the “Blood Brothers”, but shortly before Mr Vollmost’s abduction, had broken away from this group (although they continued to refer to themselves as the Blood Brothers for a period of time in furtherance of their drug supply business). The Crown will maintain that the accused were drug dealers in the Hawkesbury region, with the ambition to take over the supply of drugs there. The four accused had a hierarchy which was denoted by nicknames that they gave each other. Mr Tilley considered himself to be the head of the family and used the nickname “Coach”. Mr Davies was the second in charge and used the nickname “Captain”. Mr Thomas was next in line and used the nickname “Medium” and also sometimes referred to himself as “Walters”. Finally, Mr Bentley used the nickname “Smallzy” and sometimes “Smokey”.

34. The business of the accused included supplying other lower level suppliers with the drug ice. The accused wished to ensure that low level drug dealers used them as their source of supply, including supplying drugs on credit. A necessary part of the business was collecting debts when owed. This required, where necessary, violence or the threat of violence in both actually collecting the money and also in maintaining their status in the community as the drug dealers who were running the Hawkesbury region. Even what might seem to be relatively low level debts required the accused to take extreme measures to enforce those debts for both purposes.

35. The Crown case is that, as at 31 March 2015, the accused had been looking for the deceased for some time in relation to a drug debt. They found him and they pursued him in motor vehicles. They were the aggressors. During the pursuit they rammed the car conveying him. They were intent on violently assaulting him.

36. The Crown alleges that the action taken by the accused in respect of Mr Vollmost on 31 March 2015 can only be understood against the background relating to the nature of their drug business.

Consideration

37. It is convenient to continue to consider the Crown’s application in the identified categories to which earlier reference has been made.

Category 1

38. The Crown contends that all of the evidence in this category has significant probative value because it demonstrates the tendency of Messrs Tilley, Davies and Bentley to use violence or threats of violence in combination to enforce drug debts or otherwise to advance their drug supply operation. The Crown submits that the violence which it alleges was directed towards Mr Vollmost on 31 March 2015, commencing with the car chase and thereafter, is rendered more likely by the evidence sought to be adduced. Striking similarity is not required but the Crown highlights the following similarities with the pursuit of Mr Moerig:

1. Mr Moerig was a drug customer.

2. The violence threatened against him was carried out by the three accused in company.

3. The violence was directed at furthering their drug supply operation.

4. Mr Moerig was chased in a vehicle.

39. The Crown maintains that the Caltex service station incident, relied upon with respect to Messrs Davies and Bentley, is of significant probative value because it is evidence of what amounts to a threat to kill Mr Moerig and then dispose of his body. That is precisely what the Crown contends occurred in this case.

40. In my opinion, the evidence which the Crown proposes to adduce does not have significant probative value. None of the material involves violence and none of it demonstrates a tendency for actual violence. I accept that at one level it could be argued that in some circumstances mere threats of violence might qualify as violence itself. In the present case, however, without exception, the intimation that violence may be perpetrated upon anyone is closely associated with a complete absence of either the type of violence that is threatened or any violence at all. The tendency that is evident on this material would appear to be a tendency to make threats that are never followed up. All of the incidents concerned, in striking contrast to the acts alleged against all accused, ended somewhat lamely.

41. At the opposite end of the spectrum, the acts alleged against all of the accused are violent in the extreme. It is in my view a mistake to conflate even a demonstrated tendency on the part of the accused to threaten violence that is not carried through, with its value in assessing the extent to which it rationally affects the assessment of the probability that they in fact kidnapped or murdered Mr Vollmost. It must be understood that the probative value in question is that of the putative tendency evidence and the extent to which it could rationally affect the probability of a fact in issue. It is not the reverse: the direct evidence upon which the Crown relies to establish the guilt of the accused cannot be used to bolster or to demonstrate the existence of the anterior tendency for which the Crown contends.

42. Taken at its highest, the evidence that the Crown has foreshadowed it will lead against the accused, not being the proposed tendency evidence, supports the existence of a strong circumstantial case. There is, however, in my opinion a significant disconnect between that case, based upon the performance of the acts said to constitute the commission of the alleged offences on the one hand, and the evidence upon which the Crown proposes to rely as demonstrating some relevant tendency on the other hand. I find it difficult to understand how a jury might be expected properly to assess whether the accused are guilty or not guilty of committing the violent crimes of kidnapping and murder with the spurious and questionable benefit of evidence that appears to derogate from a tendency to engage in or perform the very type of conduct in question. In so saying I do not intend erroneously to indicate that the behaviour said to demonstrate a relevant tendency is not sufficiently similar to the charged acts to warrant consideration. I do intend to convey my opinion that the tendency demonstrated by the proposed evidence has no significant probative value in the defined sense in that it cannot rationally affect the probability of the existence of a fact in issue in this case.

43. I am informed by the Crown that the evidence, subject to any objections that may be taken to it, or part of it, will be relied upon in the Crown case for non-tendency purposes. Without limiting the Crown in this respect, those purposes appear likely to include the following:

1. As evidence of the association between or among the accused.

2. As evidence that they were together engaged in a drug supply business which included the use of violence or at least threatened violence.

3. As evidence of their ambition to take over the drug supply business in the Hawkesbury region.

4. As evidence as to the fact of the death of Mr Vollmost, having regard to the contrast between the charged acts and the events involving, for example, Mr Moerig.

5. As to the state of mind of co-accused for the purposes of establishing what they contemplated as a possible incident of the joint criminal enterprise.

44. The relevance of the material for non-tendency purposes appears generally to be accepted by counsel for the accused. While the jury will have to be given a direction about the use to which they cannot put the evidence, having regard to my conclusion that it cannot be relied upon for tendency purposes, the s 101(2) question of whether or not the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused does not presently arise.

Category 2

45. The Crown contends that the evidence relating to the Sing Mok incident has significant probative value because it demonstrates the tendency of the relevant accused to use violence or threats of violence to enforce drug debts or otherwise advance their drug supply operation. The Crown contends that this evidence makes it more likely that the violence directed towards Mr Vollmost occurred, including the car chase. Although striking similarity is not required, the Crown points to the following similarities:

1. Mr Mok was a drug customer.

2. The violence or threatened violence was carried out by Mr Tilley in the company of others.

3. The conduct was directed to the enforcement of a drug debt.

4. The conduct involved detaining Mr Mok against his will.

5. The conduct involved an implicit threat to kill Mr Mok.

46. The only violence actually perpetrated against Mr Mok is the evidence that he was elbowed in the ribs. I accept once again that his involuntary detention might on one view also amount to violence or at least the threat of violence.

47. However, as with Category 1, the threats went unfulfilled. Mr Mok was not assaulted or killed. His cars, or those owned by his parents, were not taken. I do not consider that the evidence demonstrates the existence of any tendency that could be of significant probative value in the circumstances of this case. As I have already indicated, it is a mistake to attribute some artificial significance to these events, amounting to a contention that they demonstrate some significantly probative tendency, by directing back upon them the bright light cast by the later events that support the charged acts.

Category 3

48. The words in question in this category arise in the course of a much longer conversation about demolition or building work. The response “Who are we bashing?” appears to be entirely enigmatic and unrelated to the remaining text. It is difficult to explain in the circumstances. On the contrary, it is not difficult to conclude that it is not evidence of the tendency for which the Crown contends. It is demonstrably unrelated to the recovery of drug debts or the assertion of influence as drug dealers in the Hawkesbury region. In my opinion, the response in issue has no significant probative value of any kind, if it in fact has any probative value at all.

Category 4

49. This conversation would appear to concern Mr Bentley relating a conversation with an unidentified person who paid him money for some unexplained purpose. It is not certain, although it is likely, that it relates to the payment of a drug debt. It is obvious from other parts of the recorded material that Mr Bentley is concerned to indicate that he would not be impressed if any of the notes given to him were not genuine currency. The recorded material includes a reference to “a fake fiddy” and a fake hundred, and some general discussion about the detection of counterfeit notes.

50. The passage in question stands alone among the other topics discussed in this conversation. The context appears to me to demonstrate that the speaker is bragging about how he would deal with someone who he suspected of paying him with counterfeit currency. It is impossible to determine whether the words Mr Bentley told his co-accused that he said on the occasion that he is relating to them were said in fact or whether he is concocting this incident to impress them. The reliability or believability of this material would, of course, ultimately be a question for the jury if it were admitted.

51. Having regard to the limited nature of the evidence in question, it does not seem to me that it has any significant probative value with respect to the tendency for which the Crown contends. The conversation in which the material is to be found involves three co-accused. It patently does not involve violence in fact. Properly understood, the statement also does not involve a threat of violence in the sense that it is evidence from the person to whom it was allegedly directed, as opposed to Mr Bentley’s account of what he claims to have said.

Category 6

52. The only portion of these messages that could have any conceivable relevance in the present context would appear to be the words “I get a bit lost in the moment and try break arms once they’re knocked out and cut fingers off and shit”. In my opinion this material is just puerile bravado and is not significantly probative of the tendency for which the Crown contends.

Category 7

53. The Crown presumably relies upon the words “you don’t want to end up like that guy in South Windsor” as supporting the existence of the tendency for which the Crown contends. This statement is different to the other material relied upon to the extent that it postdates the events that found the present charges. That fact would not disqualify the material from consideration as tendency evidence: see, eg, IMM v The Queen at [179] per Nettle and Gordon JJ; JLS v The Queen (2010) 28 VR 328; [2010] VSCA 209 at [29].

54. I do not consider that this statement has significant probative value. It is rhetorical in nature. It describes no actual violence. It does not contain a specific threat of violence.

55. However, more importantly in my opinion, I am not satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on Mr Bentley. This is for the reason that it appears to bespeak a knowledge of or intimacy with the events that give rise to these proceedings. That evidence in the setting of a non-tendency purpose may be anodyne and correspondingly benign. In the context of submissions and directions to a jury that it is available for use for tendency purposes, the evidence arguably takes on quite a different character. The prejudice that could not be ameliorated or eradicated by appropriate directions consists in the risk that Mr Bentley’s apparent knowledge of the foundational events might be treated by the jury as a manifestation of the very tendency for which the Crown contends. Those events, underlying the charges faced by the accused, were by then in the public domain. It would be wrong for a jury to reason in such a fashion. I am not satisfied that even the most detailed directions could avoid the possibility that a jury may be influenced to such a conclusion.

Category 8

56. The Crown contends that the tattoos on Mr Bentley’s leg display a willingness and tendency to use violence to further his criminal activities with the three co-accused. The evidence does not indicate whether the tattoos were acquired before or after the events that give rise to these proceedings.

56. I have some considerable difficulty with the proposition that a tattoo can demonstrate the existence of a tendency. A tendency is an inclination towards a particular characteristic or type of behaviour. It would in my view be straining the language to breaking point to suggest that a passive depiction, even including words, could suggest or support the existence of an active tendency. Indeed, the tattoo says nothing about violence or threats of violence to collect drug debts or otherwise advance a drug supply business. It probably says a lot about Mr Bentley’s commitment to his co-accused, although the obverse is not necessarily true. In that setting, the tattoo may be admissible for a non-tendency purpose. However, in support of the application to adduce the evidence for a tendency purpose, it is not in my view attended by any, let alone any significant, probative value either by itself or having regard to other evidence adduced or to be adduced by the Crown.

Conclusion

58. It follows that I reject the Crown’s application to adduce any of the nominated material as tendency evidence.

Miscellaneous

59. Mr Thomas foreshadowed an application for a separate trial if the Crown’s application to adduce tendency evidence against his co-accused had succeeded. In the events that have occurred, it has become unnecessary to consider that application.

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Decision last updated: 24 October 2019