Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 212
Court: Supreme Court of New South Wales
Date: 27 February 2018
Judge: Harrison J
Background
Four accused faced trial on a charge of specially aggravated kidnapping (and an alternative charge of attempted specially aggravated kidnapping) in connection with the removal of a man, referred to in the judgment as Mr Vollmost, from residential premises. CCTV footage captured two of the accused, together with the others, carrying Mr Vollmost's limp body through a rear gate and placing him into a waiting car.
At the close of the Crown case, all four accused applied for a directed verdict, arguing there was no case to go to the jury. The application raised two principal arguments: that no evidence of an intention to kidnap existed, and that Mr Vollmost may already have been dead when he was taken from the premises.
Legal Issues
- Whether there was sufficient evidence that any of the accused intended to detain Mr Vollmost in order to obtain an advantage, as required to establish the kidnapping charge
- Whether the Crown had adduced sufficient evidence to support a finding, beyond reasonable doubt, that Mr Vollmost was alive at the time he was removed from the premises
- Whether, in the absence of that finding, the jury should instead consider the alternative charge of attempted specially aggravated kidnapping
Decision
On the question of intent, Harrison J rejected the argument that the absence of physical restraints (such as ropes or ties) at the scene meant no intention to kidnap could be inferred. The CCTV footage clearly depicted the accused carrying Mr Vollmost's flaccid body away, and other evidence showed he had sustained significant injuries and lost a large quantity of blood. That evidence was sufficient to support a reasonable inference of an intention to disable and detain him.
On whether Mr Vollmost was alive when removed, the court identified three categories of evidence: the CCTV footage, eyewitness accounts of words spoken near the scene, and the expert opinion of Professor Duflou. Two witnesses, Mr Knight and Mr Byrnes, gave evidence that they heard voices among the group saying words to the effect that Mr Vollmost was "still breathing" as he was carried out through the gate.
Harrison J found that the witnesses' proximity to the events and the uncontested nature of their accounts entitled the jury to be satisfied beyond reasonable doubt that Mr Vollmost was alive at the relevant time. Professor Duflou's expert evidence did not foreclose that conclusion. While the professor acknowledged it was "an entirely reasonable possibility" that death had already occurred, he also noted it was uncommon for a person to die within a minute of blunt force injuries unless the injuries were massive. The CCTV footage itself was treated as effectively neutral on the issue.
Because the primary charge was left to the jury, the court found it unnecessary to rule on whether the alternative charge of attempted specially aggravated kidnapping should also be left for the jury's consideration.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court confirmed that a no case to answer application requires the court to determine whether there is evidence upon which a jury could reasonably be satisfied of each element of the charge, not to weigh up competing evidence as though conducting the trial itself.
- Absence of physical restraint materials at the scene does not, of itself, preclude an inference of intention to detain. Evidence of serious assault and the physical act of removal can be sufficient to support such an inference.
- Where eyewitness evidence of a victim's condition is proximate, unobstructed, and unchallenged, a court may find it sufficient to support a jury verdict beyond reasonable doubt, even where expert evidence acknowledges an alternative possibility.
- Expert evidence that death was "an entirely reasonable possibility" did not compel the conclusion that the evidence was evenly balanced or that no jury could exclude that possibility as a reasonable one.
- Specially aggravated kidnapping requires proof that the accused detained the victim without consent and with the intention of obtaining an advantage, that the offence was committed in company, and that actual bodily harm was occasioned at the time of or immediately before or after the offence.
Legislation and Cases Referenced
No specific legislation or cases were cited in the provided text. The elements of specially aggravated kidnapping were set out by Harrison J in the judgment, but no statutory provision was expressly named.