Citation: R v Bentley; R v Thomas; R v Tilley; R v Davies [2018] NSWSC 67
Court: Supreme Court of New South Wales
Date: 7 February 2018
Judge: Harrison J
Background
Four accused faced charges of murder and detaining a person for advantage, arising from events on 31 March 2015 at South Windsor. The prosecution alleged that the accused pursued the deceased in a vehicle, chased him into a residential property, and subjected him to a severe assault. The deceased was then carried unconscious to the accused's vehicle and driven away. He has not been seen since, and forensic evidence established that blood loss at the scene was sufficient to cause imminent death.
The Crown applied to adduce tendency evidence against three of the four accused (Bentley, Tilley, and Davies) under section 97 of the Evidence Act 1995 (NSW). The proposed tendency was a disposition to use violence, or the threat of violence, to collect drug debts or otherwise advance a drug supply business. The fourth accused, Thomas, was not the subject of a tendency notice but foreshadowed an application for a separate trial if the Crown's application succeeded.
The Crown organised its proposed tendency material into eight categories. This judgment resolved whether any of that material met the statutory threshold for admissibility as tendency evidence.
Legal Issues
- Whether the proposed evidence demonstrated a tendency, in accordance with section 97 of the Evidence Act 1995, to use violence or threats of violence to collect drug debts or advance a drug supply business
- Whether any of the eight categories of proposed evidence had "significant probative value" as required by section 97(1)(b)
- Whether the probative value of each category of evidence substantially outweighed any unfair prejudicial effect under section 101
- Whether evidence of unfulfilled threats of violence can support a tendency to actually use violence
- Whether a tattoo can, as a matter of law, demonstrate a tendency toward active violent behaviour
Decision
Harrison J rejected all eight categories of proposed tendency evidence. The central difficulty for the Crown was that the bulk of the proposed material showed the accused making threats of violence to recover drug debts, without those threats being carried into effect. His Honour held that evidence of unfulfilled threats does not establish a tendency to actually use violence. The logical gap between threatening conduct and violent conduct was too wide to confer significant probative value on the tendency the Crown sought to prove.
For categories involving threats made to drug customers or associates, the court found the evidence showed, at most, a tendency to threaten. Such evidence could not establish the more serious tendency to act violently that the Crown required to bolster its murder and kidnapping case. Several categories involved only one or two incidents, which were insufficient in number or specificity to satisfy the threshold of significant probative value under section 97.
The court also rejected Category 7, which concerned statements attributed to Bentley about past events related to the deceased. His Honour found the statements were, on their face, capable of an innocent interpretation, and that directing a jury to use them as tendency evidence created a real risk of unfair prejudice that no direction could adequately address. The jury might improperly treat Bentley's apparent knowledge of the underlying events as itself manifesting the very tendency the Crown sought to prove.
Category 8, involving tattoos on Bentley's leg, was rejected on a more fundamental basis. Harrison J held that a passive depiction, even one containing words, cannot logically demonstrate an active tendency toward violent behaviour. The tattoos said nothing about violence or threats in the context of drug debts, and their timing relative to the charged events was unknown. While the tattoos might be admissible for a non-tendency purpose, they carried no significant probative value in support of the tendency application.
Orders Made
• The Crown's application to adduce any of the nominated material as tendency evidence is rejected.
Key Takeaways
- Evidence of threats of violence that were never carried out does not, without more, establish a tendency to use actual violence. The distinction matters when the Crown seeks to prove a tendency to act, not merely to threaten.
- Under section 97 of the Evidence Act 1995, tendency evidence must have "significant probative value." Where proposed evidence is consistent with multiple interpretations, including innocent ones, that threshold is difficult to satisfy.
- A small number of isolated incidents may be insufficient to establish a tendency, particularly where the logical connection between the prior conduct and the tendency alleged is weak or equivocal.
- Prejudice cannot always be cured by direction. Where tendency evidence risks leading a jury to reason improperly from a defendant's knowledge of background events to the existence of the very tendency alleged, the risk of unfair prejudice may be irremediable.
- A tattoo, as a passive and static depiction, cannot demonstrate an active behavioural tendency within the meaning of the tendency evidence provisions. Tendency requires evidence of inclination toward a type of conduct, not merely symbolic association with a group or cause.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 97, 101
Cases
- Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- DSJ v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9
- R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
- El Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330
- BC v R [2015] NSWCCA 327
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA
- R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306
- SK v R [2011] NSWCCA 292
- R v Meyn (No.2) [2012] NSWSC 1449
- JLS v The Queen (2010) 28 VR 328; [2010] VSCA 209
- Sokolowskyj v The Queen [2014] NSWCCA 55
- R v Maybir (No.7) [2015] NSWSC 1742
- Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886