R v Coss (No 10 - Verdict)

Case •

[2023] NSWSC 447

•

28 April 2023

No judgment structure available for this case.

Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: R v Coss (No 10 – Verdict) [2023] NSWSC 447
Hearing dates: 30 May 2022, 31 May 2022, 1 June 2022, 2 June 2022, 3 June 2022, 6 June 2022, 7 June 2022, 9 June 2022, 18 July 2022, 27 March 2023, 28 March 2023, 30 March 2023, 31 March 2023 and 3 April 2023
Date of orders: 28 April 2023
Decision date: 28 April 2023
Jurisdiction:Common Law - Criminal
Before: Dhanji J
Decision:

Bruce Coss found not guilty of the murder of Darren Royce Willis.

Catchwords:

CRIMINAL LAW – murder – trial by judge alone – not guilty plea entered – accused and deceased were neighbours – difficult relationship between accused and deceased – missing body – publicity surrounding the trial – local sighting of bone on property – kangaroo tailbone or human backbone – deceased skull fragments found during trial - witnesses that might be involved in the alleged crime – inconsistent versions between key crown witnesses – key witnesses affected by drugs and alcohol on the night in question – benefits received for cooperation – listening device and surveillance recordings – not guilty verdict

Legislation Cited:

Crimes Act 1900 (NSW) s 18(1)(a)

Criminal Procedure Act 1986 (NSW) ss 132, 133(2), 133(3)

Cases Cited:

R v Coss (No 2) [2022] NSWSC 792

Category:Principal judgment
Parties: Rex (Crown)
Bruce Anthony Coss (Accused)
Representation:

Counsel:
L Shaw (Crown)
M P King (Accused)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)
File Number(s): 2019/336236
Publication restriction: Nil

Judgment

  1. On 30 May 2022, Bruce Anthony Coss (the accused) was arraigned before me on an indictment that charged him with an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) that he:

“between 10 December 2010 and 19 December 2010, at Bingara in the State of New South Wales, did murder Darren Royce Willis.”

  1. The accused entered a plea of not guilty to that charge.

  2. The accused elected to be tried by a judge alone pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), a course which was agreed to by the Crown. Given the agreement of both parties, on 24 May 2022, I made an order for the trial to proceed in that way, on satisfaction that the accused had received appropriate legal advice prior to making the election: R v Coss (No 2) [2022] NSWSC 792.

  3. The trial took place before me in Moree in May 2022 and then subsequently in two separate sittings in Sydney. The course of the trial was unusual in this respect and is the subject of discussion below.

Background

  1. Bingara is a small town of about 1300 people [1] in the north-west of New South Wales about 100 kilometres south-east of Moree. Darren Willis (the deceased) was a Bingara local, as was the accused. For reasons that were never explained, Mr Willis appears to have been universally known as “Spaz”. In December 2010 he was 45 years old. The deceased had lived in Bingara for a substantial portion of his life although he was known to leave Bingara from time to time, without notice to others, only to return to pick up where he left off. Senior Constable Gary McCrum described him as “a likeable bloke” [2] who would “sort out his own problems”. [3] Senior Constable Steven Harris was stationed at Bingara between 2007 and 2014 as one of two resident police officers. He described the deceased as someone who led a “nomadic lifestyle”. [4] He said that the deceased regularly “drew attention to himself”, “liked to drink”, “didn’t mind a punch-up” and would sometimes have to be told to “pull his head in”. [5] The deceased was, by many accounts, a capable fighter, no doubt assisted by his height, which was 198 cm or about six and a half feet, and reach.

    1. Tcpt, 31 May 2022, p 43(3)

    2. Tcpt, 31 May 2022, p 75(32)

    3. Tcpt, 31 May 2022, p 75(29)

    4. Tcpt, 31 May 2022, p 39(7)

    5. Tcpt, 31 May 2022, p 49(25)-(45)

  2. In late 2010, concerns were raised with respect to the deceased’s welfare as he had not been seen for some time. On 14 January 2011, his sister, Sheena Woods, reported him missing. Senior Constable Harris was unsuccessful in his efforts to locate Mr Willis and formed a reasonable suspicion that he was dead, leading to a report being made to the Coroner. Consequently, an inquest was held into the deceased’s disappearance. In 2014, Deputy State Coroner McMahon returned his findings. Based on evidence that the deceased had not operated his bank account since 3 December 2010, that he had not left Australia, that he had not been in contact with persons with whom he maintained relationships, and he had not come to the attention of the police, his Honour was satisfied on the balance of probabilities that he had died. The significance of the deceased not having come to police attention was in the context of him having had numerous dealings with police and some criminal history.

  3. The Deputy State Coroner noted evidence that the deceased had been seen at the Sportsman’s Hotel on 10 December 2010, there having been a Christmas party held there that night. There was evidence that, from his residence at 8 Basset Street, to get to or from town, including the Sportsman’s Hotel, the deceased commonly crossed the Gwydir River. The river was, at the time, running high, and the deceased was likely quite heavily intoxicated. The Deputy State Coroner observed that, had the deceased attempted to cross the river at that time, it would have been dangerous for him to do so. That the deceased had met his death in this way was a theory propounded by some residents of the small town. However, while there was some suggestion that the deceased was last seen on 10 December 2010, his Honour accepted evidence given by Mr Andrew Cooper that he spoke with the deceased on 13 December 2010. His Honour noted that rumours had circulated within the community that the deceased got into trouble with members of an “outlaw motorcycle gang” as a result of his relationship with a woman associated with a gang member. His Honour noted that Senior Constable Harris had not been able to take these matters further and stated that they were no more than rumours.

  4. The Deputy State Coroner found that the deceased died “on or after 13 December 2010 in or about Bingara” and recorded that the evidence did not allow him to make any finding as to the cause or manner of death. [6]

    6. Exhibit B, Tab 42, p 302

  5. The matter essentially rested there for a number of years. That changed in January 2018. Around that time, Mr Robert Stonestreet, previously a close friend, had a falling out with the accused, resulting in a violent physical altercation between the two men. A relatively short time after this Mr Stonestreet had a conversation with his friend, Keith King. Mr King said that Mr Stonestreet, who he knew as “Hairy Man”, said that he had been “holding something in for a matter of years” and went on to say that he knew about the murder of “Spaz”.

  6. Mr King said he spoke to the police in Moree the next day. [7] In addition to the information being given to the police, it appears to have been shared with others, sparking some discussion amongst various members of the township. While Mr King said he had no detail at that stage, Detective Senior Constable Michael Aslin gave a different version. He said Mr King came to see him out of the blue on 22 January 2018. Detective Senior Constable Aslin’s evidence, as indicated in his 2018 statement, was that Mr King told him that the accused had argued with the deceased and “walked up to him with a stick with a Tek screw in it, and he’s hit him in the head and killed him”. [8] Detective Senior Constable Aslin said he took a note of the conversation but this was subsequently destroyed. [9] The result was that when he prepared his statement, he did not have the note but relied upon versions recorded in two databases, which were, inexplicably, different. One recorded the following: [10]

“… on the night [the deceased] and [the accused] were having an argument when [the deceased] approached [the accused] whilst armed with a wooden instrument being an axe or a pick handle with a screw at the end. [The accused] has struck [the deceased] to his head with the wooden implement causing the death of [the deceased]. [The accused] has then loaded [the deceased] into the rear of an unknown yellow utility and driven to [the Four Mile] where he has disposed of the body by dumping it into the river’.”

7. Tcpt, 1 June 2022, p 121(34)-(37)

8. Tcpt, 18 July 2022, p 565(18)-(19)

9. Tcpt, 18 July 2022, p 576(13)-(28)

10. Tcpt, 18 July 2022, p 578

  1. The other recorded: [11]

“Stating he had information pertaining to possible homicide of [the deceased], stating he had a conversation with [Mr Stonestreet] on 21 January 2018, where Stonestreet disclosed he had witnessed a male called Bruce Coss [the accused] murder a reported missing person named Darren Willis [the deceased] with a wooden handle or bat with protruding screw. Stonestreet told [Mr Keith King] that he saw [the accused] put the deceased body into a yellow ute …. [The accused] later told Stonestreet he disposed of the body by dumping it in the river at the Four Mile.”

11. Tcpt, 18 July 2022, p 578

  1. Mr Stonestreet’s disclosure to Mr King appears to have come shortly after he had a falling out with the accused, resulting in a violent physical altercation between them.

  2. The police investigation recommenced with the accused as a suspect. Detective Senior Constable Aslin spoke to the accused informally and told him they were investigating the deceased’s disappearance. The accused told Detective Senior Constable Aslin that he “knew Spaz really well. We had plenty of punch ups” but denied any responsibility for Mr Willis’ disappearance. [12]

    12. Tcpt, 18 July 2022, p 586(7)

  3. In April 2018, telephone intercept warrants and a surveillance device warrant were obtained by police. Various recordings of the accused were captured in which he discussed the investigation and the deceased. No direct admissions were made by the accused in these recordings. The Crown submitted that the various utterances in the recordings sustain an inference that there was a night on which something occurred between the accused and the deceased. It was submitted that this evidence, taken with other evidence in the case, was probative of the accused’s guilt. It will be necessary to deal with what can be established by the recordings in due course.

  4. On 22 and 26 June 2018, police spoke with Mr Stonestreet and Mr Marle, each of whom denied any involvement. Police believed this to be false as a result of recordings obtained pursuant to the warrants.

  5. Andrew Legg regarded himself as a close friend of the deceased. Mr Legg was also a close friend of Mr Marle. He said that on 1 September 2018 he discussed the deceased’s death with Mr Marle and told him that the police knew what happened, and that it would be in Mr Marle’s best interests to tell them what he knew. Mr Marle then spoke of a night that implied he knew what happened, stating, according to Mr Legg, that he fell asleep on the lounge and then “when [he] woke up things didn’t seem right”. [13] He said that when he woke up, he saw a bat. [14] It seems Mr Marle was encouraged to go to the police, and on 17 September 2018, he was interviewed and gave an account implicating the accused in Mr Willis’ death. Mr Marle later agreed to cooperate with police.

    13. Exhibit H, Tab 48, p 319

    14. Exhibit H, Tab 48, p 319

  6. Meanwhile, police investigations continued and further recordings were obtained. Mr Marle, now assisting the police, actively engaged in conversations with the accused and Mr Stonestreet. Eventually, on 25 October 2019, Mr Stonestreet was arrested and charged with concealing a serious indictable offence. He was refused bail and remained in custody. Mr Stonestreet was interviewed by police on 26 October 2019 and, while he spoke of witnessing a fight between the accused and the deceased, he did not suggest that he had seen the accused kill the deceased. It was not until his second interview with police on 2 April 2020, that he claimed to have witnessed the accused hit the deceased with a bat. On 12 August 2020, Mr Stonestreet was granted bail. He eventually pleaded guilty to concealing a serious indictable offence and received a 6-month Intensive Corrections Order (ICO). In the course of his sentencing proceedings he confirmed his willingness to assist in the prosecution of the accused.

  7. On 1 October 2020, Mr Marle was arrested and charged with concealing a serious indictable offence. He also pleaded guilty and received a 6-month ICO, taking into account a discount for past and future assistance in the prosecution of the accused.

  8. The accused was arrested on 25 October 2019, the same day Mr Stonestreet was arrested, and charged with murder. He participated in a lengthy record of interview in which he denied the offence.

  9. When the trial commenced before me in Moree, the body of the deceased had not been found. As a result of circumstances beyond anyone’s control, shortly before the Crown case was due to close, after which it was anticipated addresses would begin, the trial was adjourned. By the time the trial recommenced, there had been further developments. It appears that, as a result of publicity surrounding the trial, Mr Alfred King, a Bingara local, was reminded of a bone that he had seen some seven years earlier on his property. He had, at the time dismissed it as the tailbone of kangaroo. On reflection, in the context of publicity surrounding this case, he questioned whether it was a kangaroo tailbone or actually a human backbone. In particular, he questioned the absence of skin or fur. As a result, Mr Alfred King went back to the location he had first seen the bone with his friend Mr Daryl Blackman. The area was stretch of Doctors Creek below a waterfall. While they were unable to find the bone seen earlier by Mr Alfred King, they retrieved a number of bones including a piece of a human skull. A thorough search of the area was then done by police which uncovered further skull fragments.

  10. Testing on the skull fragments revealed them to be the remains of the deceased. It became the Crown case that Mr Willis’ body was dropped from the top of the waterfall. As a result of the discovery, the case was further adjourned to enable expert evidence to be obtained in relation to the skull fragments. Ultimately, the Crown called evidence from Dr Penny McCardle, a forensic anthropologist. The defence called Dr Soren Blau. Their evidence will be discussed below. For present purposes is sufficient to note that while Dr McCardle’s evidence might be regarded as providing some support for Mr Stonestreet’s evidence, the evidence did not significantly advance the Crown case.

  11. It will be apparent from the above overview that proof of the Crown case relies on the evidence of Mr Marle, Mr Stonestreet, and recordings obtained through the use of warrants, in particular, statements in those recordings of the accused. These recorded statements, in combination with the evidence of Mr Marle and Mr Stonestreet, are relied on by the Crown as incriminating the accused. These three areas of evidence will be the subject of further discussion below. Before analysing that evidence, it is necessary to have regard to what the Crown must prove and various directions of law which must be applied. In addition, I will set out, in very brief terms, other evidence called in the case. I will also deal with the matters not in dispute, the evidence with respect to the last sighting of the accused, and evidence as to alternative theories for his disappearance.

Directions

  1. Section 133(2) of the Criminal Procedure Act requires me to state the principles of law that I apply, as well as the findings of fact upon which I rely. Section 133(3) says that where the law requires a warning to be given to a jury, I must take the warning into account in dealing with the matter. I will first set out the general principals of law that I apply and any relevant warnings. I will apply those to the evidence and facts as I summarise them. I will then set out the evidence and the findings of fact upon which I rely in reaching my verdict.

Presumption of innocence

  1. The fundamental starting point is that the accused enters the courtroom with a presumption of innocence. He is not required to prove his innocence. The law and the tribunal of fact presume that he is innocent.

Onus and standard of proof

  1. The legal consequence of the presumption of innocence is that the prosecution bears the onus of proof. The onus never shifts. It remains on the Crown from beginning to end. The accused bears no onus. He is not required to prove anything in the trial. He is not required to prove that he is innocent.

  2. The standard of proof is beyond a reasonable doubt. Those words and that phrase have their ordinary English meaning. Suspicion, no matter how grave, is insufficient to justify a conviction.

  3. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. The Crown is not required to prove the truth and reliability of every disputed fact or to establish everything that its important witnesses said in evidence.

Essential elements

  1. In the context of the present case, to sustain a verdict of guilty to the charge of murder, the Crown must prove the following things beyond reasonable doubt:

  1. That Mr Willis is, in fact, deceased.

  2. That the accused, acting alone, did an intentional act that caused Mr Willis’ death.

  3. That the accused did that act with an intention to kill or with an intention to inflict grievous bodily harm or acted with reckless indifference to human life. Grievous bodily harm means really serious injury.

  1. The requirement that the Crown prove that the accused acted alone in causing the death of Mr Willis, while not, as a matter of law, an element of murder, arises in the particular factual circumstances of this case. The Crown case relies on Mr Marle and Mr Stonestreet. Their versions are that the accused was solely responsible for the fatal blow or blows. In circumstances where the Crown case requires acceptance of Mr Marle and Mr Stonestreet (at least in key respects), the Crown accepted it followed that it was necessary to prove that the accused acted alone to prove the case against the accused.

  2. None of the relevant defences or partial defences (such as self-defence, provocation or substantial impairment) have been raised in this case. I will not consider them further.

  3. Neither party suggests that the alternative verdict of manslaughter arises. However, if I am satisfied that the accused killed Mr Willis but have a reasonable doubt as to his intention, the accused might be guilty of manslaughter by unlawful and dangerous act. That would arise if I was satisfied that the accused killed the deceased by means of an unlawful act (an unlawful assault) which was objectively dangerous in the sense that it carried with it an appreciable risk of serious injury.

  4. In determining whether I am satisfied the Crown has discharged its onus of establishing the essential elements beyond reasonable doubt, it is necessary that I approach the evidence in accordance with the further directions set out below.

Drawing inferences from direct evidence

  1. I am able to, and will, draw inferences from the established evidence. A combination of facts or evidence may lead me to infer the existence of facts that are not, or cannot, be proved by direct evidence. Before drawing any such inference, I must take care to consider whether the inference can rationally be drawn and must consider any competing inferences that are available. When drawing inferences, I must first be satisfied of the primary facts. I need not be satisfied of primary facts beyond reasonable doubt. There is no particular standard of proof to be applied to the individual items of evidence from which inferences are drawn, but the process is subject to the care to which I have referred.

  1. Some intermediate facts may be so crucial to the process of reasoning that they are indispensable to the chain of reasoning leading to the inference of guilt. If there are such intermediate facts, they must be established beyond reasonable doubt.

  2. When it comes to drawing the ultimate inference of guilt, I must not draw such an inference unless it is the only reasonable inference, or only reasonable hypothesis or conclusion, available on the evidence such that I am satisfied beyond reasonable doubt.

Silence of the accused

  1. The accused did not give evidence in the trial. Consistent with the onus of proof, I draw no adverse inference against the accused. The case is to be decided on the evidence before me. That evidence is to be considered without regard to any decision of the accused not to give evidence.

A warning in relation to Mr Marle and Mr Stonestreet

  1. Mr Marle and Mr Stonestreet are witnesses who might have been involved in the alleged crime. At the very least, on their own accounts, they were guilty of the crime of concealing the offence of murder. I warn myself that the evidence of these witnesses may be unreliable. On the Crown case, they were present when the deceased was murdered, and, in those circumstances, each had a motive to minimise any part they may have played in the deceased’s death. Each, by his presence, may have become aware of details that could be woven into a false narrative to make it appear accurate and reliable. Each obtained a benefit as a result of his cooperation with police. Each, having given a version to police in exchange for a benefit, were likely to feel locked into that version, particularly given the prospect of being resentenced for failing to provide the promised assistance. I note it is not for the accused to prove any possible motivation for these witnesses to lie.

  2. In addition, each of Mr Marle and Mr Stonestreet were affected by drugs and alcohol on the night. Their statements implicating the accused were made many years after the event. The evidence suggested that abuse of drugs and alcohol had continued between those two points of time. Further, each has given inconsistent versions over time. There are inconsistencies between them, and inconsistencies within their own evidence.

  3. Having regard to the above matters, it was accepted by the Crown that a warning in relation to these witnesses is appropriate. I must exercise considerable caution before acting on the evidence of either Mr Marle or Mr Stonestreet.

Forensic disadvantage

  1. The substantial delay has resulted in forensic disadvantage to the accused. Mr Legg was an important witness. He provided a statement but died before the trial. The accused has not been able to explore his evidence, and, in particular, the circumstances surrounding Mr Marle’s decision to co-operate with police, a matter Mr Legg appears to have been involved in. Mr Legg may also have been able to shed light on the versions circulating in Bingara after the police investigation recommenced in January 2018. In this regard, his statement as to who he told and when appears to be inconsistent with the other evidence.

  2. The remains of Mr Willis that were found were only partial. Had the body of Mr Willis been found closer in time to his death, the accused would have been able to explore whether his injuries were consistent with the Crown case. The incomplete nature of the remains requires that I exercise considerable caution in drawing any inference in favour of the Crown based on those remains.

  3. The accused also sought a direction with respect to forensic disadvantage arising from the death of Mr David Rose, who was the publican at the Sportsman’s Hotel at the relevant time. It is not clear how the accused suffered a disadvantage in this regard and the submission was, ultimately, only faintly put.

The evidence

A brief summary of the evidence given by each witness

  1. I will refer briefly to the evidence called, in the order in which was led. I do not propose discussing the evidence in any detail, given the primary relevance of much of the evidence was its bearing on the evidence of Mr Marle and Mr Stonestreet, issues as to the timing of Mr Willis’ disappearance, and the alternative theories for his disappearance, which will be discussed separately.

Senior Constable Steven Harris

  1. The statement of Senior Constable Harris dated 13 December 2012 was tendered. [15] As noted above, Senior Constable Harris was one of two resident police officers in Bingara from 2007 to 2014 and was the officer in charge of the missing persons investigation pertaining to the deceased.

    15. Exhibit B, Tab 13

  2. Senior Constable Harris gave evidence about the missing persons investigation and the steps taken from 2011 to locate the deceased. He gave evidence about three conversations he had with the accused during the missing persons investigation and said the accused was cooperative during those conversations.

  3. As noted above, Senior Constable Harris also gave evidence about his dealings with the deceased prior to his disappearance. He also recorded a number of last sightings of the deceased, set out evidence about the deceased’s involvement with “bikies”, [16] noted the deceased’s past history of a “nomadic lifestyle”, [17] and gave evidence about the Gwydir River. [18]

Senior Constable Gary McCrum

16. Tcpt, 31 May 2022, p 35(45)

17. Tcpt, 31 May 2022, p 39(8)

18. Tcpt, 31 May 2022, pp 56-58

  1. The statement of Senior Constable McCrum dated 25 September 2012 was tendered. [19] Senior Constable McCrum was a police officer stationed at Bingara from around 2008 to 2012.

    19. Exhibit B, Tab 14

  2. As noted above, Senior Constable McCrum gave evidence about his interactions with the deceased. He said that deceased often went on “walkabout” [20] and would re-appear as if nothing happened. He also gave evidence about a talk he had with the accused while on a patrol to locate the deceased on 17 January 2011. He said that there “wasn’t anything suspicious in anything the accused told him that day”. [21]

Andrew Ross Cooper

20. Tcpt, 31 May 2022, p 73(28)

21. Tcpt, 31 May 2022, p 78(48)

  1. Mr Cooper was a Bingara local having lived in Bingara all his life. As at around 2010 or 2012, Mr Cooper had been working for the Gwydir Shire Council (the Council) for about 25 years.

  2. Mr Cooper told the Court that he knew the deceased well. He also gave evidence about there being three Christmas parties in 2010, namely the Bingara Social Club Christmas party at the Sportsman’s Hotel on 10 December 2010, the Council Social Club Christmas party as to which he was not sure of the date, and the Gwydir Shire Councillors’ party which he thought was possibly on 16 December 2010.

  3. Mr Cooper gave evidence about two sightings of the deceased, the first on 10 December 2010 and a further sighting on 13 December 2010. These accounts are considered in more detail below.

Catherine Johnson

  1. Catherine Johnson had lived in Bingara for over 20 years with her husband, Wayne Johnson. Mrs Johnson told the Court that she had known the deceased since she was 16 and she and her husband were good friends with him. She gave evidence about an incident between the deceased and the accused, and her knowledge of the accused’s “gold Ford ute”. [22] She also told the Court about her last sighting of the deceased on 16 December 2010, a sighting of a car going up to the lookout at Bingara on that same day, and a trip to Inverell on 20 December 2010, each considered in more detail below.

Wayne Johnson

22. Tcpt, 31 May 2022, p 89(8)

  1. Mr Johnson was a Bingara local and the husband of Mrs Johnson. Mr Johnson told the Court that he was a good friend of the deceased, having known him since he was at school. He gave evidence that he would sometimes not see the deceased for a month or two and then the deceased would “turn up out of the blue”. [23] He stated that this occurred a number of times over the years. He gave evidence that the deceased was a drinker and a bit of a fighter, who got “into scraps” [24] from time to time.

    23. Tcpt, 31 May 2022, p 105(2)

    24. Tcpt, 31 May 2022, p 106(20)

  2. Mr Johnson also gave evidence about animosity between the deceased and the accused and told the Court that in 2010 the accused drove a “yellow-coloured XP Falcon ute”. [25] He also gave evidence about his last sighting of the deceased on 16 December 2010, the sighting of a car on that same day, and his trip to Inverell on 20 December 2010, discussed in more detail below.

Keith King

25. Tcpt, 31 May 2022, p 100(12)

  1. Mr King had lived in Bingara all his life. He operated an earthmoving business. Mr King knew the deceased, the accused, Mr Stonestreet and Mr Marle. He gave evidence that he became friends with the deceased as an adult. He agreed with the proposition that the deceased was a “knockabout kind of guy” [26] who “liked the ladies … and the ladies appeared to have liked him”. [27] He also told the Court the deceased was someone who “liked alcohol” [28] and “liked a fight”. [29] He also knew the accused. He said that he and the accused had “a bit of a qualm at one point” but they “spoke about it and got it sorted out”. [30] Mr King also gave evidence that in 2018 he was a close friend of Mr Stonestreet, and said that in 2018, Mr Stonestreet and the accused had a physical fight.

    26. Tcpt, 01 June 2022, p 136(42)

    27. Tcpt, 01 June 2022, p 137(7)-(11)

    28. Tcpt, 01 June 2022, p 136(47)

    29. Tcpt, 01 June 2022, p 137(1)

    30. Tcpt, 01 June 2022, p 142(49)

  2. As noted above, Mr King gave evidence that, on or around 20 or 21 January 2018, Mr Stonestreet told him that “he had been holding something in for a matter of years” [31] and Mr Stonestreet went on to say that he knew about the murder of the deceased. The following morning, Mr King told Detective Senior Constable Aslin that Mr Stonestreet had known about the murder of the deceased, and, after that conversation, assisted the police to get information from Mr Stonestreet.

    31. Tcpt, 01 June 2022, p 120(40)

  3. Mr King gave evidence of his conversations with Mr Stonestreet about the murder. Mr King was also captured on several surveillance devices and telephone intercept recordings and gave evidence about these recordings.

  4. Mr King also gave evidence that Mr Marle became aware that Mr Stonestreet had told him, that is, Mr King, about the murder. He told the Court that he encouraged Mr Marle to go to the police and that he drove Mr Marle to the Moree Police Station where he introduced him to Detective Senior Constable Aslin and Senior Constable Brendan Tremaine.

  5. Mr King also told the Court about a conversation with Mr Legg, in which Mr Legg might have mentioned that “he heard something about a bat being used”. [32] Mr King referred to rumours that had circulated the town with respect to Mr Willis’ disappearance, the accused’s capacity to get the deceased onto his ute, and the “slippery” [33] conditions of the fishing spot at Four Mile.

    32. Tcpt, 01 June 2022, p 152(2)

    33. Tcpt, 01 June 2022, p 157(10)

  6. Mr King also gave evidence about a decline in his mental health in 2019 due to his assistance to police and gave evidence he was not aware of the reward being offered by the police and has not applied for any reward.

Scott Graham Marle

  1. Mr Marle was a key witness in the Crown case and his evidence will be discussed in detail below.

Robert James Stonestreet

  1. Mr Stonestreet was also key witness in the Crown case and his evidence will be discussed in detail below.

Detective Senior Constable Michael Aslin

  1. The statements of Detective Senior Constable Aslin dated 4 June 2020, 14 September 2020, 25 November 2020 and 29 March 2021 were tendered. [34] Detective Senior Constable Aslin was the officer in charge of the investigation from 2018 onwards.

    34. Exhibit H, Tab 58, Tab 59 and Tab 60

  2. As discussed above, Detective Senior Constable Aslin gave evidence about his conversation with Mr King on 22 January 2018. As noted above, he took a note of the conversation, but this was consequently destroyed, and he instead relied upon differing versions recorded in two databases. He told the Court that in the early stages of the investigation he was in regular contact with Mr King and confirmed the police asked Mr King to speak to Mr Stonestreet.

  3. Detective Senior Constable Aslin gave evidence about the obtaining of surveillance device and telephone intercept warrants and was played a number of recordings in which he identified the voices. He also detailed the steps in the investigation including his interactions with the accused, Mr Marle and Mr Stonestreet. He told the Court about an informal conversation with the accused in which the accused admitted to having “plenty of punch ups” [35] with the deceased. He gave evidence about the interviewing of Mr Stonestreet and Mr Marle, discussed in more detail below, and gave evidence about the accused’s 10-hour interview with police on 25 October 2019. The length of that interview was, to an extent, explained by the playing of a number of recordings to the accused. The interview itself was not before me. It was not suggested that any admissions to the offence were made by the accused.

    35. Tcpt, 18 July 2022, p 586(7)

  4. Detective Senior Constable Aslin also reviewed the bank statement of the deceased and confirmed that the last withdrawal was on 3 December 2010. He also gave evidence about the recovery of the accused’s motor vehicle, his visit with Mr Marle to a location where the accused allegedly worked on Narrabri Road, and, in his statement, set out the various enquiries undertaken with respect to other persons of interest during the investigation.

  5. Detective Senior Constable Aslin also gave evidence about access to the Doctors Creek waterfall in 2022. He stated that, in 2022, it was possible to access the waterfall at Doctors Creek from the Narrabri side of the waterfall from what was described by Mr Alfred King as a “kangaroo trail” [36] . He also told the Court that in 2022 it was possible to drive much closer to the waterfall on the Bingara side but there was no evidence that this was possible in 2010. He also confirmed that he had only ever visited the waterfall in the daytime.

Alfred King

36. Tcpt, 27 March 2023, p 688(36)

  1. Mr Alfred King, at the time he gave evidence, was 87 years old and had lived in Bingara all his life. He volunteered for the Rural Fire Service for 60 years and the State Emergency Service (SES) for 16 years, contributing to his knowledge of the area. Mr Alfred King gave evidence that he knew the deceased all his life. He told the Court that he remembers the deceased as a heavy built man and estimated he weighed around 14 stone (which approximates to about 89 kgs).

  2. As noted above, Mr Alfred King told the Court about an incident seven years ago, in which he found a bone on the western side of Doctors Creek below the waterfall. He said that, as a result of publicity surrounding this trial during the Moree sittings in June 2022, he was prompted to return to the area to look for the bones he had seen earlier. He said he did this on 22 June 2022 with Mr Blackman whereupon they discovered of a number of bones including what he believed to be part of a human skull.

  3. Mr Alfred King also gave evidence about the waterfall at Doctors Creek. He stated he was familiar with the area because the SES conducts vertical rescue training in that location. He told the Court that the waterfall was around 100 m in total, with the first drop being around 10 m. Mr Alfred King also told the Court about access to the waterfall by car in 2010. He said that there was a place to park a car and then a 300 metre long “kangaroo track” [37] to the top of the waterfall. He told the Court that there was a lot of vegetation along the track, it was not uncommon for trees to have fallen over and said there were no fences guarding the edges of the waterfall.

Daryl Blackman

37. Tcpt, 27 March 2023, p 620(38)

  1. Mr Blackman moved to Bingara in 2016 and is a friend of Mr Alfred King. Mr Blackman gave similar evidence to Mr Alfred King about the search for bones at Doctors Creek on 22 June 2022. Mr Blackman said that he and Mr Alfred King found five bones in different locations, with the last bone being the top of a skull which was half under a rock. Mr Blackman also gave evidence about his interactions with police regarding the bones and told the Court on the following day he took the police to the exact locations where the bones were found.

Peter Kennedy

  1. Peter Kennedy was employed by the Council as a works overseer between March 2001 and November 2021. In that role, he coordinated all road works, construction, and maintenance for the Council.

  2. Mr Kennedy gave evidence about the accused’s work at the Council, in particular, work on two Council construction projects on Narrabri Road in 2010, discussed in more detail below.

  3. Mr Kennedy also gave evidence about the waterfall at Doctors Creek. He told the Court he had been to the waterfall several times and said that it was known to locals, particularly in the past, as a scenic site. He told the Court that, in 2010-2011, the waterfall could be accessed by an old Council gravel pit, where it was then “probably around a 200 to 300 metre walk down to the waterfall”. [38] He gave evidence that “it was never a defined track” [39] and that you had to “pick your way”. [40] He told the Court that the site was dangerous and that there was no fencing and nothing to stop people losing their footing. He stated that if you were not watching your step, you could fall off, explained that he would never take kids there, and recalled that “[y]ou wouldn’t go there at night-time”. [41]

Detective Senior Constable Brendan Tremaine

38. Tcpt, 27 March 2023, p 630(26)

39. Tcpt, 27 March 2023, p 630(30)

40. Tcpt, 27 March 2023, p 630(30)

41. Tcpt, 27 March 2023, p 632(46)

  1. Detective Senior Constable Tremaine was located at the Moree Police Station at the time of the investigation. He was the shower on the view conducted on 30 May 2022. On that view, he showed the Court a number of locations, including the exterior, front bar, TAB room and rear bar of the Sportsman’s Hotel; the riverbank of the Gwydir River; the location where Halls Creek joins the Gwydir river; the exterior of 8 Bassett Street Bingara, the house the deceased lived in as at December 2010; the exterior of 6 Bassett Street, the house the accused lived in; the area next to the ironbark tree on the property of 6 Bassett Street; and the side of the riverbank looking back towards Bingara.

  2. Detective Senior Constable Tremaine’s statement dated 14 March 2022 was tendered. [42] He gave evidence about the discovery of bone fragments at Doctors Creek. He said that on 23 June 2022, he attended Doctors Creek with Mr Blackman who identified the locations of the discovered bones. Of the five bones collected by Mr Alfred King and Mr Blackman, only one of them (the skull fragment) was human. Detective Senior Constable Brendan Tremaine told the Court that the bone fragment had a “very very high statistical probability match” [43] to the deceased’s DNA.

    42. Exhibit Q

    43. Tcpt, 27 March 2023, p 635(31)

  3. Detective Senior Constable Tremaine also gave evidence that during a visit to Doctors Creek on 30 June 2022 with Detective Senior Constable Graeme Campbell, as part of the planning process for a large-scale operation, Detective Senior Constable Campbell located a small bone fragment in the creek bed which was also found to have a very high statistical probability match to the DNA of the deceased.

  4. Detective Senior Constable Tremaine then gave evidence generally about two extensive searches undertaken by police at Doctors Creek. The first search commenced on 5 July 2022 and was cancelled on 7 July 2022 due to rainfall. A second search was conducted in September 2022. That search was conducted over areas already examined, along with additional areas.

  1. Detective Senior Constable Tremaine also gave evidence about the topography of the waterfall and creek, as well as access to the area. He stated that there were other areas, apart from the waterfall, that dropped off into the gorge. He told the Court that these areas had heavy terrain and confirmed in cross-examination that these areas had no lights, fences or guard rails. He told the Court that, as of 2023, it was possible to access the waterfall from both the Narrabri and the Bingara sides of the waterfalls. He stated that in 2023, he was able to drive a utility vehicle to an area close to where there is a steep fall to the Doctors Creek. He had not tried to access the waterfall at night time.

Senior Constable Gavin Thompson

  1. Statements of Senior Constable Gavin Thompson dated 24 August 2022, 19 September 2022, and 27 September 2022 were tendered. [44] Senior Constable Thompson is attached to the Tamworth Crime Scene Section of the New South Wales Police Force Forensic Evidence and Technical Services Command. He has worked as a crime scene examiner for more than 15 years.

    44. Exhibit I, Tab 1, Tab 3 and Tab 5

  2. Senior Constable Thompson gave evidence about the process and findings from the July 2022 and September 2022 searches. He also explained the various photographs attached to his statements and the police drone footage of the Doctors Creek area. [45] He told the Court that all the fragments discovered were skull fragments as opposed to any other body part.

Dr Penny McCardle

45. Tcpt, 27 March 2023, pp 667-672

  1. Dr McCardle is a forensic anthropologist. Her reports of 12 October 2022 and 5 December 2022 were tendered. [46] Dr McCardle has a Bachelor of Arts in palaeoanthropology and a PhD in forensic anthropology. She has worked in the field for about 20 years and is regularly engaged by the relevant New South Wales authorities to assist with investigations, particularly where there are remains that have been in the field for some years.

    46. Exhibit K, Tab 2 and Tab 4

  2. Dr McCardle told the Court that she attended the police searches at Doctors Creek in July 2022 and September 2022 and subsequently reviewed a number of skull fragments. She stated that the skull fragments were in “an excellent state of preservation” given the circumstances and as compared to other human remains she had reviewed in the past. [47] Dr McCardle told the Court that there was no way of knowing when the apparent damage was caused to the bone fragments and confirmed there was no carbon dating on the bones.

    47. Tcpt, 28 March 2023, p 699(48)

  3. Dr McCardle gave evidence about the various breakages to the skull and gave her opinion about whether the various breakages were in peri-mortem period (a period of time when the bone has elasticity as a result of collagen and moisture and usually occurs at, or in the period following, death) or the post-mortem period (the period following the peri-mortem stage, occurring some time after death, where the bone has dried out). She stated that it is not possible to estimate how long the bones located might have stayed in the peri-mortem phase. In cross-examination, she agreed that it was unlikely, but possible, that this period could extend for some months after death.

  4. Dr McCardle found a number of peri-mortem fractures to the skull. Of particular note, Dr McCardle found there was a peri-mortem “depressed (bevelled fracture) along [the] left inferior end of the coronial suture at Pterion that extends for 1.6cm”. [48]

    48. Tcpt, 28 March 2023, p 730(7)

  5. Based on her observations, Dr McCardle ultimately formed the view that there were two blunt force trauma impacts to the skull. She reported an initial blunt force trauma to the left temporal area, evidenced by the depressed fracture to the left frontal bone referred to above. She then identified a second blunt force trauma to a missing cranial element at the rear of the skull. She gave evidence that this sequencing was possible because, as supported by Puppe’s law, other fracture lines stopped when reaching the fracture line of the first trauma. This, according to Dr McCardle, suggested the trauma to the left temporal area was caused first.

  6. Dr McCardle told the Court that, due of the missing skull fragments, there may have been one or multiple blunt force trauma impacts before or after the two traumas identified. Dr McCardle also told the Court that she could not express an opinion about the mechanism or cause of the blunt force trauma.

  7. Dr McCardle had been provided with the reports of Dr Blau. In response to Dr Blau’s opinions, Dr McCardle changed her view about a further (third) blunt force trauma but maintained her view with respect to the two blunt force traumas referred to above and maintained that it was possible to sequence the blunt force traumas as she had done. Dr McCardle said she had an advantage over Dr Blau as a result of being able to physically see the bones and also by attending the site at Doctors Creek where the bones were located. Dr McCardle also told the Court that she was not given a synopsis of what any witness had said and deliberately went out of her way to make sure she was never told that information, so as to eliminate the risk of being influenced in her opinions.

Dr Lorraine Du Toit-Prinsloo

  1. An autopsy report of Dr Lorraine Du Toit-Prinsloo dated 5 December 2022 was tendered. [49] Dr Du Toit-Prinsloo is a forensic pathologist. Her evidence was brief. She said the “direct cause of death is unascertained” [50] .

Dr Soren Blau

49. Exhibit K, Tab 1

50. Tcpt, 28 March 2023, p 727(23)

  1. The defence called evidence from Dr Blau. Her reports of 4 November 2022 and 4 January 2023 were tendered. [51] Dr Blau is a forensic anthropologist with a Bachelor of Arts in Archaeology (Honours Class I), a Master of Science in Osteology and Pathology, and PhD in Osteoarchaeology. She has been involved with the excavation and analysis of human remains in Australia and overseas for 20 years and has held a number of positions including her current role as the Manager, Identification Services and Senior Forensic Anthropologist at the Victorian Institute of Forensic Medicine, where she has worked since 2005. She has also been published in peer review journals and co-edited a number of books.

    51. Exhibit K, Tab 3 and Tab 4

  2. Dr Blau conducted an examination based on the photographs of the bone fragments. Dr Blau told the Court that any analysis of the skull fragments was complicated by the preservation and a number of other factors including, “the environment in which the skeletal elements were located and the passage of time” [52] from when the deceased was last observed alive to when the skeletal fragments were located.

    52. Tcpt, 30 March 2023, p 777(46)

  3. Dr Blau agreed with Dr McCardle that it was possible to “observe some defects” [53] on the skull fragments and agreed with the interpretation of a number of peri-mortem and post-mortem breaks identified by Dr McCardle. Dr Blau also agreed with Dr McCardle that the peri-mortem period can exist for some period after death and agreed that it could be weeks or months, although also said that it could continue for years.

    53. Tcpt, 30 March 2023, p 777(43)

  4. Dr Blau challenged Dr McCardle’s finding of a “depressed (bevelled fracture) along [the] left inferior end of the coronial suture at Pterion that extends for 1.6cm”. [54] She told the Court that the form and shape of the area, the relationship of the frontal bone to the parietal bone, and “the nature of the edge of the parietal bone” exhibit features that in her opinion “are illustrative of post-mortem damage.” [55]

    54. Tcpt, 28 March 2023, p 730(7)

    55. Tcpt, 30 March 2023, p 789(43)

  5. Dr Blau also disputed Dr McCardle’s capacity to sequence the blunt force traumas. She stated that while, in principle, it is possible to sequence impacts to the skull, it is necessary to have a complete skull to do so. She also told the Court that while it is possible to trace fractures back to a point of impact, the mechanisms at force are more complicated. Ultimately, she stated that Dr McCardle’s findings go “beyond what can be reasonably concluded” [56] because of the incomplete skull and findings about the type of damage (peri-mortem or post-mortem) went beyond what the physical evidence demonstrated.

    56. Tcpt, 30 March 2023, p 789(30)

  6. Dr Blau agreed with Dr McCardle that neither the cause of any blunt force trauma damage nor the timing of any damage could be determined.

  7. Dr Blau acknowledged that her findings were based on photographs and accepted that “examining the actual specimens of the skeletal remains is extremely important to form an opinion”. [57] In cross-examination, Dr Blau also said that attending the scene is beneficial for a practitioner. Dr Blau also said that she had been given material prior to her analysis that indicated the use of a potential baseball bat and conceded that “possibly it would be good” [58] for a practitioner to be unaware of external material when interpreting bone fragments.

    57. Tcpt, 30 March 2023, p 791(25)

    58. Tcpt, 30 March 2023, p 808(23)

A brief summary of the statements tendered

  1. In addition to the witnesses called, a number of witness statements were tendered without objection. Again, I do not propose to discuss this evidence in any detail.

Stuart Pilling

  1. The statement of Stuart Pilling dated 17 July 2019 was tendered. [59] Mr Pilling grew up living in Bingara. He moved to Queensland in 2007 for work and returned to live in Bingara in 2017. Mr Pilling knew the accused and the deceased growing up and gave an account of the relationship between them.

Sonja Stevenson

59. Exhibit A16

  1. Statements of Sonja Stevenson dated 20 August 2018 and 26 March 2019 were tendered. [60] Ms Stevenson moved to Bingara in 2003 and is a former partner of Mr Stonestreet. She was recorded in a number of recorded conversations.

    60. Exhibit A17 and Exhibit A18

  2. Ms Stevenson said in her statement that she had known the deceased since she came to Bingara. She stated that the deceased used to fight all the time in pubs and clubs but did not do so close to his death. She described the deceased as a “short-fused type of fella” who was “hot-headed”. [61] She said that the deceased was sleeping with Belinda Stonestreet (Mr Stonestreet’s sister) prior to his disappearance and denied that she herself had any sexual relationship with the deceased.

    61. Exhibit A17, p 10

  3. Ms Stevenson recounted the last time she saw the deceased, which she thought may have been on 10 December 2010. Ms Stevenson also recalled several disagreements between the deceased and the accused, and recounted her investigations into the deceased’s disappearance, in particular regarding the deceased’s apparent involvement with bikies, discussed further below.

Leslie Bracken

  1. The redacted statement of Leslie Bracken dated 5 December 2018 was tendered. [62] Ms Bracken moved to Bingara with her partner and children in 2017. Up until late 2018, she lived at 4 Bassett Street and was a neighbour and friend of the accused.

    62. Exhibit A19

  2. Ms Bracken stated that in July 2018, she had a conversation with the accused about Mr Stonestreet and his ex-partner Ms Stevenson giving statements to the police. In that conversation, Ms Bracken recounted that the accused said, “apparently I hit him in the head with a bit of four by two with screws hanging out of it.” [63] She stated that the accused continued and stated words to the effect of “that’s what they are saying I did”. [64]

Angus Beresford Grant

63. Exhibit A19, p 4

64. Exhibit A19, p 4

  1. The redacted statement of Angus Beresford Grant dated 26 March 2019 was tendered. [65] Mr Angus Grant lived in the Bingara area from 1997 and was the owner and manager of three properties in the area.

    65. Exhibit A20

  2. In his statement, Mr Angus Grant set out his experience of Mr Stonestreet, including Mr Stonestreet’s work with him over the years, Mr Stonestreet’s association with the accused and Mr Marle, and Mr Stonestreet’s falling out with the accused.

Jeffrey Roberts

  1. The statement of Jeffrey Roberts dated 3 June 2018 was tendered. [66] In 2010, Mr Roberts worked as a truck driver/delivery driver and made deliveries to Bingara every Thursday. In his statement, Mr Roberts recalled his last sighting of the deceased, discussed in more detail below.

Murray Grant

66. Exhibit A21

  1. The statement of Murray Grant dated 27 May 2022 was tendered. [67] Mr Murray Grant knew the deceased having first met him in the early 2000s. He stated that he lived with the deceased for a period in 2005 and they “bonded” during that time. [68] Mr Murray Grant recalled a rumour he heard in 2007 that the deceased was “fucking a bikies Mrs”. [69]

Brenda Wilson

67. Exhibit A22

68. Exhibit A22, p 1

69. Exhibit A22, p 1

  1. The statement of Brenda Wilson dated 30 August 2018 and a redacted statement dated 3 October 2018 were tendered. [70] Ms Wilson was in an intimate relationship with the deceased from July 2010 to September 2010.

    70. Exhibit A23 and Exhibit A24

  2. Ms Wilson referred to an argument she witnessed between the accused and the deceased. She also said that she did not remember the deceased going away for any extended periods of time while they were in a relationship. She referred to her new partner’s feelings towards the deceased, and recalled the deceased having had a falling out with Ms Stevenson.

Cheryl Marle

  1. The statement of Cheryl Marle dated 12 May 2022 was tendered. [71] Ms Marle is the mother of Mr Marle. In her statement, Ms Marle referred to a number of trips to Sydney with Mr Marle in December 2010 and January 2011. She said that she travelled to Sydney with Mr Marle for Family Court proceedings and in order for Mr Marle to see his daughter. She could not remember all the dates they went to Sydney but recalled a trip on 22 November 2010. She also noted that a document was signed by her on 3 December 2010 at the Parramatta Family Court and reported a transaction on her bank statement on 21 December 2010 for a Motel in Windsor, which she said would have been a date when she and Mr Marle were in Sydney.

Beryl Dixon

71. Exhibit E

  1. The redacted statement of Beryl Dixon dated 24 July 2019 was tendered. [72] Ms Dixon was born in Bingara. She moved to Sydney when she was 16 years old and moved back to Bingara when she was 34 years old. Ms Dixon grew up living near the deceased and they were good friends.

    72. Exhibit H, Tab 44

  2. In her statement, Ms Dixon discussed the deceased’s relationships and the deceased’s arguments with the accused. Ms Dixon recalled the last time she saw the deceased and the attempts made by her and others to report his disappearance to the police. She also said that a couple of years before his disappearance, the deceased “would go missing for weeks at a time,” [73] however, from 2004, the deceased would not “take off” [74] without telling her or someone where he was going. She also noted that the deceased took his blue cattle dog everywhere with him.

Shane John Hancock

73. Exhibit H, Tab 44, p 307

74. Exhibit H, Tab 44, p 307

  1. The redacted statement of Shane John Hancock dated 1 August 2019 was tendered. [75] Mr Hancock lived about 42 kilometres out of Bingara and prior to this had lived in Bingara all his life. Mr Hancock worked for the Council and had done so for the previous 17 years. In his statement, Mr Hancock recalled his last sighting of the deceased on a Friday night around the time the deceased went missing. He also said that accused was always “getting around” [76] with Mr Stonestreet and that the deceased would sometimes be with them.

Sharon Holder

75. Exhibit H, Tab 45

76. Exhibit H, Tab 45, p 310

  1. The redacted statement of Sharon Holder dated 14 May 2019 was tendered. [77] Ms Holder had lived in Bingara for 60 years and was a good friend of the deceased and his sister, Ms Woods.

    77. Exhibit H, Tab 46

  2. Ms Holder referred to an incident approximately two years before the deceased disappeared where the deceased told her that Mr Stonestreet, Belinda Stonestreet, and Belinda Stonestreet’s ex-partner threw beer bottles through his front window. Ms Holder also referred to the clearing out of the deceased house and car after his disappearance.

Edward Mark Lanagan

  1. The redacted statement of Edward Mark Lanagan dated 17 July 2019 was tendered. [78] Mr Lanagan was born in Bingara and lived in a number of other locations before returning to Bingara in 2017. While he was living away from Bingara, he would return regularly to visit family and friends.

    78. Exhibit H, Tab 47

  2. Mr Lanagan said he had had a conversation with Connie Merritt and others about the deceased’s disappearance in September or October 2018, in which it was said the deceased was “hit over the head with a piece of timber which may have had a bolt or nail protruding from it” [79] at the accused’s house after an argument with the accused and Mr Stonestreet. He said this was the first time he heard this version. He also stated that, around two weeks later, he repeated this to other Bingara locals.

Andrew Legg

79. Exhibit H, Tab 47, p 315

  1. Mr Legg had died by the time of the trial. His statement of 4 September 2019 was tendered. [80] Mr Legg was a Bingara local and regarded himself a close friend of the deceased. In his statement he said he was also a close friend of Mr Marle and lived about 300 metres from the accused.

    80. Exhibit H, Tab 48

  2. In his statement, Mr Legg said that because he was in a valley below the accused and, as it was generally quiet, sound would carry from the accused’s house to his. He said that on 3 December 2010, he heard an argument coming from the accused house and then at about 3:00am in the morning, he heard the accused’s ute revving loudly. He was “pretty sure” [81] it was the same night of the argument but if not, it was a “within a week either side”. [82] He said that he spoke with the accused over that weekend, who told him that he had to move the ute “because where it was parked it was going to get bogged”. [83] He also recalled a conversation he had with Mr Marle at a party on 1 September 2018 in relation the deceased’s disappearance, discussed in more detail below.

    81. Exhibit H, Tab 48, p 318

    82. Exhibit H, Tab 48, p 318

    83. Exhibit H, Tab 48, p 318

  3. Mr Legg’s statement referred to an argument he overheard between the deceased and the accused a week or two prior to the deceased going missing. Mr Legg also said he had a conversation with Mr Lanagan where Mr Lanagan reported that he had heard that the accused “hit [the deceased] over the head with a bat”. [84] Mr Legg also said that he had sold his “cream/dirty yellow ute” [85] to the accused.

Colin Lindsay

84. Exhibit H, Tab 48, p 318

85. Exhibit H, Tab 48, p 317

  1. The redacted statement of Colin Lindsay dated 20 September 2019 was tendered. [86] Mr Lindsay grew up in Bingara and moved away in 2015. He knew the deceased from the time he was around eight or nine years old but never really associated with him. He was also friends with the accused and was the cousin of Mr Stonestreet.

    86. Exhibit H, Tab 49

  2. Mr Lindsay referred to a “punch up” [87] between Mr Stonestreet and the accused in around 2011. He also recounted the various rumours he heard about the disappearance of the deceased and discussed the accused and Mr Stonestreet’s potential access to and possession of various weapons.

Dianne Logan

87. Exhibit H, Tab 49, p 322

  1. The redacted statement of Dianne Logan dated 6 December 2018 was tendered. [88] Mrs Logan was born in Bingara and lived in Bingara for most of her life. She was married to Kevin Logan and lived at 4 Bassett Street. She had known the deceased since he was a child.

    88. Exhibit H, Tab 50

  2. Mrs Logan said that, following the accused’s marriage breakdown, he had boarders, including Mr Stonestreet, live with him, and recounted that the accused would often have parties at his house. She also recalled an “off and on relationship” between the deceased and the accused. [89]

  1. Dr Blau reviewed photographs of the skull. Her opinion was that the photographs did not allow her to conclude that the damage relied upon by Dr McCardle demonstrated blunt force trauma at the peri-mortem stage. While Dr Blau’s opinion was put to Dr McCardle, allowing Dr McCardle to expand on her opinion, the reasoning leading to Dr Blau’s contrary opinion was not contained in her report and the detail of her reason for disagreement was not put to Dr McCardle. This, in my view, occasioned some unfairness to Dr McCardle in that, while she was able to provide her own reasoning, she was not able to offer an opinion as to why she did not accept Dr Blau’s opinion. The Crown did not seek to recall Dr McCardle in order to address this issue. Ultimately, the evidence was left in a somewhat unsatisfactory state. On one view, there is no inconsistency in that Dr Blau gave evidence of what could be seen in the photographs, while Dr McCardle gave evidence of what could be seen on an examination of the actual bones. Dr Blau conceded that Dr McCardle had a significant advantage in having access to the bone fragments. Ultimately, it is unnecessary to resolve the issue. Even if I were to accept the evidence of Dr McCardle, the assistance it provides to the Crown case is limited.

  2. Other aspects of the evidence resulting from the finding of the bone fragments at Doctors Creek are, at least as, and perhaps more, significant than the evidence of Dr McCardle, and do not assist the Crown case. Firstly, the location of the point at which the body was said to have been disposed, that is at the top of the waterfall in Doctors Creek, is not related to the area known as Four Mile. The result is that the accused’s alleged statement to Mr Stonestreet that he had been at Four Mile does not advance the Crown case. More significant is the evidence with respect to access to the area near the top of the waterfall in 2010, from which, on the Crown case, the accused dumped the body. The location would have required the accused to transport Mr Willis’ body some 200 to 300 metres down a “kangaroo track” in the bush. The state of the access in 2010 was somewhat unclear, but it was certainly not straightforward. Additionally, the area was somewhat treacherous, particularly having regard to the steep cliff. As to traversing the area at night, Mr Alfred King said, “No, by gee, you wouldn’t want to do that” [449] and laughed somewhat laconically, giving some emphasis to the foolishness of the idea. While a person concerned to avoid responsibility for a murder is highly likely to take risks, the evidence as to the distance required to transport the body, the treacherous nature of the area, and the absence of any evidence that the accused was assisted in disposing of the body (particularly after the rejection of Mr Marle’s evidence with respect to the trolley) [450] adds to the question of how, on the Crown case, the accused was able to dispose of the body.

    449. Tcpt, 27 March 2023, p 621(24)

    450. I note that, at Tcpt, 30 March 2023, p 813 (40), the Crown prosecutor accepted, properly in my view, that given the Crown’s reliance on Mr Marle and Mr Stonestreet, it was necessary for the Crown to prove the accused acted alone in causing the death of Mr Willis. This, in my view, removes any possibility that an inference could be drawn, (if otherwise available) that one or both of Mr Marle or Mr Stonestreet assisted with the body and then lied about this part of the event.

  3. In the ultimate analysis, the prosecution case, as was accepted by the Crown, relies on acceptance of critical aspects of the evidence of Mr Marle and Mr Stonestreet. I have, above, set out the very significant problems which attach to the evidence of Mr Marle and Mr Stonestreet with the result that each of them requires support from other independent evidence before his evidence could be accepted. There is some consistency between the two but also significant inconsistencies. I would put aside minor inconsistencies such as their movements prior to the Sportsman’s Hotel.

  4. More significantly, however, Mr Stonestreet did not agree as to Mr Marle’s account of a conversation in which the accused indicated an intention to kill Mr Willis with a bat prior to the alleged murder. There were differences between Mr Marle and Mr Stonestreet as to the appearance of the bat. It seems likely that Mr Stonestreet’s first version may or may not have referred to a bat, but even if it did, it likely referred to it having a Tek screw in it. Each of Mr Marle and Mr Stonestreet said that Mr Willis addressed them to the “effect of go back inside”, or “this has nothing to do with you”, but neither suggested that they heard Mr Willis address the other. The two of them spoke with a view to refreshing their respective memories. Even then, they had different recollections of where the fire was located, as a matter Mr Marle only recalled as a result of being told about it.

  5. Further, only Mr Stonestreet claimed, and then somewhat belatedly, to have seen the fatal blows. This is not an inconsistency, but it does mean that Mr Marle is unable to corroborate the critical part of Mr Stonestreet’s evidence.

  6. Evidence of an argument and the sound of the accused’s ute after hearing an argument coming from the accused’s house, as deposed to in Mr Legg’s statement, [451] provides some support for Mr Marle and Mr Stonestreet. That evidence is not, however, such as it would allow me to accept either account, certainly not to the point where I could accept it beyond reasonable doubt. I note the Johnsons also gave some evidence of seeing a vehicle consistent with the accused’s ute, heading up to “the lookout”. [452] It is unclear whether this location is consistent with the ute travelling to Doctors Creek. Their evidence that it stopped at the lookout would not appear to align, or at least, align neatly with the Crown case. The evidence is, in any event, imprecise and there is a problem with the timing of the event.

    451. Exhibit H, Tab 48, p 317

    452. Tcpt, 31 May 2022, pp 92-93; Tcpt, 31 May 2022, p 103

  7. The recorded conversations, for the reasons I have set out above, do not significantly advance the Crown case. Having regard to the difficulties in relying on Mr Marle and Mr Stonestreet, there is a need for evidence of far greater cogency than that offered in the recorded conversations. The result is that I cannot be satisfied beyond reasonable doubt of the account of either of Mr Marle or Mr Stonestreet, with the result that I cannot be satisfied beyond reasonable doubt of the guilt of the accused.

VERDICT

  1. Bruce Coss, for the reasons I have given, I find you not guilty of the murder of Darren Royce Willis at Bingara between 10 and 19 December 2010.

  2. The accused is discharged on the aforementioned indictment.

**********

Endnotes

Decision last updated: 28 April 2023

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R v Coss (No 2) [2022] NSWSC 792