R v Coss (No 8)

[2022] NSWSC 975

Supreme Court

New South Wales

Medium Neutral Citation:	R v Coss (No 8) [2022] NSWSC 975
Hearing dates:	18 July 2022
Date of orders:	18 July 2022
Decision date:	18 July 2022
Jurisdiction:	Common Law - Criminal
Before:	Dhanji J
Decision:	Adjournment application granted.
Catchwords:	CRIMINAL PROCEDURE – trial – judge alone - murder – new evidence – bone fragments found – bone fragments taken to police – adjournment
Category:	Procedural rulings
Parties:	Regina (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

EX TEMPORE Judgment (REVISED)

1. HIS HONOUR: This is an application for adjournment of the trial made by the Crown. The application is, in the circumstances, not opposed by the defence. The reason for that non opposition lies in the significance of the matters forming the basis for the adjournment. In short, this matter has been before me for trial over a period during which, through the fault of no-one, an adjournment was required at short notice. During the period of the adjournment it seems, as a result of publicity surrounding the trial, a person came forward to police with further relevant information.

2. That further information came from an elderly property owner who informed police that he had, some five years or so earlier, located on his property an item he believed to be, at least, part of a human backbone. On becoming aware of the trial proceedings, the person revisited the location where he had previously located the backbone. It seems that he was unable to find that same bone but located another piece of bone which he collected and took to police. The police have examined the bones provided and it is understood that the bones consist of part of a human skull and part of the mandible or jawbone, again of a human.

3. DNA testing has been undertaken in relation to the bone fragments. The result of that testing establishes that the DNA belonging to the bone fragments is consistent with the DNA of Darren Willis, the alleged victim in the trial. The consistency is such that it is very highly probable that the bone fragments are those of Mr Willis.

4. The further material is clearly highly relevant to the trial before me. Firstly, the DNA, on what I have been told, would establish to a point close to certainty that Mr Willis is, in fact, deceased. I note that there was an issue in the trial as to whether Mr Willis is, in fact, dead, although I should also note that this was perhaps not, or did not appear to be, a significant part of the defence case, if I can describe it that way, but rather more in the nature of an absence of a concession that Mr Willis is dead.

5. The second aspect of potential significance in relation to the bone fragments is their potential to provide evidence as to the manner of Mr Willis' death, assuming, of course, they do prove that Mr Willis is in fact dead. Evidence as to the manner of Mr Willis' death could potentially corroborate evidence of the persons relied upon by the Crown as direct witnesses to the murder, or at least the events surrounding the murder of Mr Willis. That is, the evidence may corroborate evidence given by Mr Stonestreet and Mr Marle. Conversely, the evidence may undermine the evidence given by either Mr Stonestreet, Mr Marle or both. Clearly the evidence has the potential to be of real significance to the case.

6. I am aware that the accused has had this matter hanging over him for some time. He was spoken to in relation to the matter as early as 2011. He was arrested in relation to the charge of murder on 25 October 2019. The matter came for trial before me in Moree commencing on 30 May 2022. It then proceeded over the subsequent weeks until it was unexpectedly interrupted on 9 June 2022, through no fault of anyone including that of the accused.

7. The matter was subsequently given a further date. It was to resume today whereupon it was expected to proceed to resolution. The accused no doubt had an expectation that that would occur. The adjournment of the matter will mean that the accused has effectively been in the course of this trial from 30 May through to very close to the end of this year. That, I accept, is a significant delay and a significant strain on the accused, particularly having regard to the phase of the trial we are presently in; that is, we have been in the actual hearing of the matter since the end of May.

8. Whilst I am mindful of that strain, and mindful also of the general public interest in the speedy resolution of the proceedings, ultimately what is called for is a balancing of the various competing factors. Having regard to the potential significance of evidence arising from the finding of the bone fragments, investigations in relation to which are still ongoing, I am of the view that the balance falls squarely in favour of granting the adjournment sought.

9. On that basis I adjourn the hearing of this matter. Having discussed various options with the parties, it seems the most suitable date is a re-commencement on 28 November 2022 with an estimate of one week. I will list the matter for mention before me on 11 October 2022 at 9.30am. The accused is excused from attending the mention. I also grant leave to the parties to appear by AVL if required. I also grant leave to the parties to approach my associate in the event that there is further information or matters to be raised with the Court in relation to the further progress of the matter.

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Decision last updated: 20 July 2022