R v Hutchinson - [2022] SASC 101

Supreme Court of South Australia
(Criminal)

R v HUTCHINSON & ANOR
Criminal Trial by Judge Alone
[2022] SASC 101
Reasons for the Verdicts of the Honourable Justice Nicholson
14 September 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE
The prosecution contends that between 6:00 and 6:30 am on 11 December 2019, Oliver Wilfred Todd was severely assaulted with the use of one or more weapons in or near his bedroom in the house in which he was living in Murray Bridge. He died at the time of or soon after as a result of injuries sustained during the assault. Three men, David James Russell, Ned Timothy Hutchinson and Terrence Bradley John Wilson, were charged with Mr Todd’s murder.
On 28 February 2022, Russell pleaded guilty to murder before me. He is yet to be sentenced and has been remanded in custody. Hutchinson and Wilson maintained their not guilty pleas and stood trial.
The prosecution case is that Russell, Hutchinson and Wilson engaged in a joint criminal enterprise to assault Mr Todd with the joint intention of either killing him or causing him grievous, that is, really serious, bodily harm. The prosecution did not adduce any eyewitness evidence of the killing of Mr Todd. The prosecution case is wholly circumstantial.
Hutchinson gave evidence that he was present when, without warning to or any previous understanding by him, Russell assaulted and killed Mr Todd with a small axe. He denied being party to any criminal enterprise to assault let alone kill Mr Todd. He admitted assisting Russell to dispose of Mr Todd’s body and to remove evidence, having been threatened with words to the effect that he “would be next” if he did not do so. According to Hutchinson, Wilson was not present and played no role.
Both Hutchinson and Wilson submitted that the evidence did not prove beyond a reasonable doubt that either was a party to a joint criminal enterprise or was involved in the killing of Mr Todd.
The trial was conducted as a Judge sitting alone, that is, without a jury, in accordance with the election of Hutchinson and Wilson made pursuant to section 7 of the Juries Act 1927 (SA).
On 3 August 2022, I entered verdicts of not guilty with respect to both murder and the common law alternative of manslaughter in favour of both Hutchinson and Wilson. I reserved my verdict with respect to the statutory alternative charge of impeding investigation of offences or assisting offenders pursuant to section 241 of the Criminal Law Consolidation Act 1935 (SA) with respect to Hutchinson.
I indicted that my reasons would be published at a later date.
Verdicts
1.Ned Timothy Hutchinson is not guilty of either murder or the alternative offence of manslaughter.
2.Ned Timothy Hutchinson is guilty of the statutory alternative charge of impeding investigation.
3.Terrence Bradley John Wilson is not guilty of either murder or the alternative offence of manslaughter.

Criminal Law Consolidation Act 1935 (SA) s 241; Evidence Act 1929 (SA) s 13, referred to.
Royall v The Queen (1991) 172 CLR 378; R v McCarthy (2015) 124 SASR 190; Gillard v The Queen (2003) 219 CLR 1; Gilbert v The Queen (2000) 201 CLR 414; Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234, considered.

R v HUTCHINSON & ANOR
[2022] SASC 101
Criminal: Trial by Judge Alone
NICHOLSON J.
Introduction

The prosecution contends that between 6:00 and 6:30 am on 11 December 2019, Oliver Wilfred Todd (known to some as “Ollie”) was severely assaulted with the use of one or more weapons in or near his bedroom in the house in which he was living in Murray Bridge. He died at the time of or soon after as a result of injuries sustained during the assault. Three men, David James Russell, Ned Timothy Hutchinson and Terrence Bradley John Wilson, were charged, on Information filed in this Court on 14 July 2021, with Mr Todd’s murder.
On 28 February 2022, Russell (known as Dave and by some as Crazy Dave) pleaded guilty to murder before me. He is yet to be sentenced and has been remanded in custody. Hutchinson (known as Ned) and Wilson (known as Terry) stood trial before me, sitting without a jury, commencing 6 April 2022. Hereinafter, I will use “the accused” to refer to Hutchinson and Wilson only. On 3 August 2022, I entered verdicts of not guilty with respect to both murder and the common law alternative of manslaughter in favour of both accused. What follows are my reasons for so finding.
Introduction to the prosecution case
As at 11 December 2019, Mr Todd and Steven Weeding (known to some as Henry) had been housemates living at 12 Tennyson Terrace, Murray Bridge for about three years and Russell had been living there in a large backyard shed for some four or five days. Brett Wollaston and Tiffany Wilson (Wilson’s sister, known as Tiff) lived with their children at 80 Jarvis Avenue. They had a large shed where friends and associates, including Russell and the accused, routinely would spend long periods of time at all hours of the day and night.
The prosecution contends that at a time between 5:57 am and 6:28 am on 11 December 2019, Russell, Hutchinson and Wilson engaged in a joint criminal enterprise to assault Mr Todd with the joint intention of either killing him or causing him grievous, that is, really serious, bodily harm. The prosecution did not adduce any eyewitness evidence of the killing of Mr Todd. However, Hutchinson gave evidence. He said that he was present, but Wilson was not, at the time Russell killed Mr Todd. Hutchinson saw but had nothing to do with the assault. It was as much a shocking surprise to him as it was to anyone else. The prosecution case against Hutchinson is entirely circumstantial and includes, once Hutchinson gave evidence, a number of admissions against interest. The prosecution case against Wilson is entirely circumstantial.
Russell, the accused, Mr Todd and Mr Weeding were all persistent and heavy drug users and all were well known to each other. On 11 December 2019, Mr Weeding left the house at 12 Tennyson Terrace shortly before 6:00 am. The prosecution contends that this cleared the way for Russell and the accused, who were aware of Mr Weeding’s departure, to go to the house and to assault and kill Mr Todd. Having done so, Mr Todd’s body was carried and dragged through the house from a position just inside or just outside Mr Todd’s bedroom to the back door, leaving an obvious blood trail. Mr Todd’s body, with a large wool bale over his head and upper torso, was then loaded onto Hutchinson’s red Nissan Navara utility. Russell and Hutchinson drove to scrubland off Point Road, Jervois,[1] dumped Mr Todd’s body and covered it with a white bloodstained quilt, rocks and bush debris.
[1] Some 20 or so kilometres from 12 Tennyson Terrace depending on the route travelled.
On the prosecution case, Wilson left Tennyson Terrace hurriedly at some point during or immediately after the assault. He did not participate in the disposal of Mr Todd’s body.
In order to succeed with the charge of murder, the prosecution must prove beyond reasonable doubt each of the elements of murder, in this case, by way of joint criminal enterprise. The following elements must be proved with respect to each of Hutchinson and Wilson.
(i)Hutchinson on the one hand and Wilson on the other entered into an agreement, arrangement or understanding with another person[2] to kill or inflict grievous, that is, really serious[3] bodily harm on Mr Todd.
(ii)One or more party or parties to the agreement, arrangement or understanding committed an act or acts which were voluntary and deliberate and which caused the death of Mr Todd.
(iii)At the time of the act or acts causal of death, the party or parties who committed them intended to kill, or cause really serious bodily harm to, Mr Todd.
(iv)At the time of the act or acts causal of death, Hutchinson or Wilson, as the case may be, remained a party to, that is, had not withdrawn from, the agreement, arrangement or understanding.
(v)The act or acts causal of the death of Mr Todd were unlawful.
[2] Any combination involving the accused under consideration with one or both of the other accused and Russell will do.
[3] Grievous is the original, older, formulation for this element. Really serious is more often used now as meaning exactly the same. What constitutes grievous (really serious) bodily harm on the facts of the particular case is a question for the fact finder.
The prosecution circumstantial evidence case against Wilson rests on four bodies of evidence under the headings: motive; movements or locations and opportunity at the relevant time; circumstances of arrest; and admissions. The circumstantial case against Hutchinson initially also rested on four bodies of evidence, this time under the headings: motive; movements or locations and opportunity at the relevant time; assistance at the crime scene; and disposal of Mr Todd’s body and clean up or removal of evidence afterwards. However, as earlier noted, the prosecution now has the advantage of various admissions against interest.
Initial directions of law
I have already set out the elements of murder in the context of an alleged joint criminal enterprise.
For each accused, the first element is squarely in issue. Was either accused party to such a joint criminal enterprise?
As far as element (ii) is concerned, it is not in dispute that someone committed the requisite act or acts. Wilson did not give evidence (as was his legal right) but in records of interview he has denied being present and having any involvement at all. The prosecution case is that he was present at and participated in the assault causing death. Hutchinson did give evidence. He has admitted being present when, without warning to or any previous understanding by him, Russell assaulted and killed Mr Todd with a small axe. He denied being party to any criminal enterprise to assault let alone kill Mr Todd. He admitted assisting Russell to dispose of Mr Todd’s body and to remove evidence, having been threatened with words to the effect that he “would be next” if he did not do so. According to Hutchinson, Wilson was not present and played no role. The prosecution contends that not only was Hutchinson present but he was a party to a joint enterprise with Russell and Wilson to assault and kill Mr Todd.
As far as the issue of causation is concerned, the prosecution must prove that the act or acts relied on by the prosecution were a substantial or significant cause of death.[4] There is no serious challenge in this case to the issue of causation. The central issue is whether it has been proved that either accused was legally responsible for those acts.
[4] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, R v McCarthy [2015] SASCFC 177; (2015) 124 SASR 190 at [336]-[338].
There is also no dispute about whether any proved causal act or acts were voluntary and deliberate. There is no evidence at all suggestive of the contrary.
As far as element (iii) is concerned, the prosecution contends that the perpetrator(s) of the violence towards Mr Todd had a specific intention to kill or at least cause really serious bodily harm to Mr Todd. In order to prove this specific intent element, the prosecution must adduce evidence of the surrounding circumstances sufficient to allow for an inference, beyond reasonable doubt, that the perpetrator(s) of the violence had the requisite intention at the time they performed the proven act or acts which were the (substantial) cause of Mr Todd’s death.
No issue arises with respect to element (iv). If the joint criminal enterprise relied on by the prosecution were to be proved against either Hutchinson or Wilson, there is nothing in the evidence to suggest as reasonably possible that either withdrew from the enterprise.
No issue arises with respect to element (v). There is no suggestion in the evidence that the person or persons who assaulted Mr Todd acted lawfully.
Manslaughter by unlawful and dangerous act is a common law alternative to murder and must be left for the consideration of the trier of fact in every case where it might arise on the evidence.[5] I remind myself of this alternative. In the context of the prosecution’s reliance on joint criminal enterprise the elements of manslaughter are as follows.
(i)Hutchinson on the one hand and Wilson on the other entered into an agreement, arrangement or understanding with another person to physically assault Mr Todd.
(ii)One or more party or parties to the agreement, arrangement or understanding committed an act or acts of violence which were voluntary and deliberate and which were unlawful and dangerous and which caused the death of Mr Todd.
(iii)At the time of the act or acts causal of death, the party or parties who committed them intended to commit the act or acts of violence which were unlawful and dangerous.
(iv)At the time of the act or acts causal of death, Hutchinson or Wilson, as the case may be, remained a party to, that is, had not withdrawn from the agreement, arrangement or understanding.
(v)The act or acts causal of the death of Mr Todd were unlawful.
[5] This is so notwithstanding any forensically based submission by defence counsel to the contrary: Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1, Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414.
As far as Hutchinson is concerned, the prosecution relies, in the alternative, on the statutory alternative offence under subsection 241(1) of the Criminal Law Consolidation Act 1935. Subsections 241(1), (2) and (5) are in these terms.
241—Impeding investigation of offences or assisting offenders
(1)Subject to subsection (2), a person (the accessory) who, knowing or believing that another person (the principal offender) has committed an offence, does an act with the intention of—
(a)     impeding investigation of the offence; or
(b)     assisting the principal offender to escape apprehension or prosecution or to dispose of proceeds of the offence,
is guilty of an offence.
(2)An accessory is not guilty of an offence against subsection (1)—
(a)     unless it is established that the principal offender committed—
(i)the offence that the accessory knew or believed the principal offender to have committed; or
(ii)some other offence committed in the same, or partly in the same, circumstances; or
(b)     if there is lawful authority or a reasonable excuse for the accessory's action.
…
(5)Where—
(a)     a person charged with an offence as a principal offender is found not guilty of the offence charged; but
(b)     the court is satisfied that another person was guilty of the offence charged (or some other offence of which the accused might on the charge be found guilty),
the court may, if satisfied that the accused is guilty of an offence against subsection (1) as an accessory in relation to the offence charged (or that other offence), find the accused guilty of an offence against subsection (1).
Hutchinson in his evidence and through his counsel’s submissions admitted committing the offence under subsection 241(1). According to his written submission, his conduct fell within the requirement provided for in paragraph (a) of subsection 241(1).
Separate consideration of charges against each accused
I have given the charge of murder and, insofar as necessary, any available alternative charge against each accused separate consideration and based only on the available evidence relevant to the charge under my consideration and admissible as against the accused under my consideration.
Presumption of innocence and burden of proof
The prosecution bears an onus to prove each element of the charge it relies on beyond reasonable doubt. Each accused is, at all times, presumed to be innocent unless, following the conclusion of the trial, I, as the trier of fact, were to be satisfied beyond reasonable doubt of guilt. A reasonable doubt would be one that, after my consideration of all of the relevant evidence in the context of the applicable law, I am prepared to entertain. Each accused adduced evidence and/or made submissions based on all of the evidence in the case by way of defence. However, neither was obliged to have done so; they were subject to no onus of proof whatsoever.
It follows, as has always been the law, that each accused was entirely free to choose whether or not to give evidence himself.
Wilson elected not to give evidence in this Court; he remained silent. An accused is not bound to give evidence. He has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to him or the case he puts forward from the exercise of that right.
Wilson’s silence in court is not evidence against him and does not constitute an admission. It may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.
Hutchinson elected to give evidence on oath and to expose himself to cross-examination. He was not obliged to give evidence. He always had the right to remain silent leaving it to the prosecution to satisfy me of all of the elements of the charges. I am entitled to give him such credit as I think appropriate for adopting that course that he was not obliged to adopt.
In assessing Hutchinson’s evidence in Court and the weight to be given to it, I must approach the task in exactly the same way as with any other witness. I have to decide what weight I am prepared to attach to the evidence of Hutchinson in the same way as I must for any other witness. Further, by going into the witness box Hutchinson has not thereby assumed any burden of proof; the burden always remains with the prosecution.
Adverse publicity and discreditable conduct evidence
As a corollary of deciding the case only on the evidence adduced at trial, I have ignored any media publicity concerning this matter. During the trial, the fact that each accused was heavily involved with an illicit drug taking community at Murray Bridge which included Russell, Mr Todd, Mr Weeding and other friends and associates who featured in the trial, became evident. Each of the accused from time to time supplied others with illicit drugs, namely cannabis and methamphetamine. Each of the accused and others in their immediate circle was regularly and routinely heavily affected by these drugs. The receipt of this evidence was unavoidable and essential in order to obtain a proper understanding of the relationships and context in which each accused operated on a daily basis. I have not used this evidence (or any other discreditable conduct evidence concerning either accused) so as to engage in propensity reasoning or by way of bad character or so-called bad person reasoning.
Approach to assessment of witnesses
Most of the witnesses called gave viva voce evidence in Court. In some cases a witness gave evidence from outside the courtroom by way of an audio visual link. On each such occasion, I reminded myself of and have observed the standard direction to be given to a jury as required by subsection 13(7) of the Evidence Act 1929 (SA).
In addition to the oral testimony, a number of out of court witness statements were tendered by consent without any party requiring the witness to be presented for oral examination. In such cases, I received the witness statement as the testimonial evidence that would have been given had the witness been called. To the extent that a statement contained irrelevant evidence or probative evidence that may be seen as also having a non-probative prejudicial potential, I ignored such irrelevant evidence and prejudicial potential. To the extent that any statement contained unobjected to hearsay, such evidence is to be accorded such weight as it may warrant bearing in mind its inherently unreliable hearsay nature.
Circumstantial evidence

Circumstantial evidence like direct evidence can be very strong, very weak, or entirely neutral. There is nothing inherent in the nature of either direct or circumstantial evidence that makes circumstantial evidence good, bad or indifferent.
The amount of circumstantial evidence that will suffice to prove a charge, beyond reasonable doubt, will vary from case to case. The number of circumstances proved can vary enormously and so can the weight of the various circumstances that are proved. The strength of a case which depends on circumstantial evidence ultimately depends on the combined strength of all of the facts that are proved to the satisfaction of the trier of fact.
A circumstantial evidence case requires a two stage approach. First, I must look at the facts upon which the prosecution relies as circumstantial and decide as to which of them I am satisfied on the evidence. Second, I must consider what inferences I am prepared to draw from those facts. Each item of circumstantial evidence needs to be examined carefully. However, when deciding whether or not the evidence satisfies me of a particular fact, I am entitled to take into account the whole of the evidence I have heard, including any item of direct evidence on the topic. I must not just consider the evidence for a particular fact in isolation.
When considering what inferences I am prepared to draw from the facts of which I am satisfied, I should not reject an individual circumstance simply because, standing alone, no inference can be drawn from that particular circumstance. Instead, I should consider it in conjunction with the other facts and circumstances of which I am satisfied. I must consider all such facts, regardless of whether, when they are standing alone, they might be thought to favour the prosecution or the defence case. In other words, I must consider the totality of the circumstances as a whole and the united force of all of the circumstances put together.
Importantly, in a case such as the present which depends wholly or very substantially on circumstantial evidence, I cannot return a guilty verdict unless the circumstances are such as to cause me to reject, even as a reasonable possibility, any explanation that would mean the accused under my consideration is not guilty of the offence.
To put that another way: before I can find an accused guilty based on circumstantial evidence, I must be satisfied not only that guilt is a rational inference or conclusion to be drawn, but that it is the only rational inference or conclusion that the circumstances I find proved enable me to draw.
Expert evidence
An expert witness is a person who has specialised knowledge based on training or study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on relevant matters within his or her particular area of expertise. Expert evidence is likely to be outside the experience and knowledge of most laypersons.
Before accepting the opinion of an expert, I must be satisfied: that they are properly qualified by training and/or experience; that they have identified the assumptions and factual bases on which their opinions are based; that the assumptions and factual bases necessary to justify their opinions are supported by either their evidence or other evidence in the case; and that they have used a proper and recognised process of reasoning.
It is for me to give such weight to the opinions of an expert that I think fit having regard to that person’s qualifications, impartiality or otherwise, and the extent, if any, to which the witness’ opinions differ from any other evidence on the topic. I should bear in mind that if, having given the matter careful consideration, I am not prepared to accept the evidence of an expert, or part of the evidence of an expert, I am not obliged to rely upon it.
Much, if not all, of the expert evidence in this trial is unchallenged. Nevertheless, it is still a matter for myself whether I accept even those parts of the expert evidence that are unchallenged.
Motive
It is important that I put any proved potential motive in its legal context. The prosecution is not required to prove a motive; motive is not an element of the offence charged or any of its alternatives. Sometimes a motive or the true motive for a crime cannot be identified. Where there is evidence of motive, as in this case, it is relevant to both the question of intent and the question of whether the accused committed the relevant act(s). Motive is a type of circumstantial evidence – the circumstances bearing on motive will need to be considered in the context of the whole of the prosecution’s circumstantial evidence case. It is a matter for the trier of fact to determine whether a particular motive existed and, if so, its significance, that is, the weight, if any, it should bear when deciding whether or not the prosecution has proved its case beyond reasonable doubt.
Consciousness of guilt
As will be discussed, both Hutchinson and Wilson engaged in conduct and/or made statements which the prosecution contends manifested a consciousness of guilt by each of them. Before relying on evidence for consciousness of guilt, I first must be satisfied that the accused in question engaged in the conduct or made the statement relied on. I then must consider whether that conduct or statement (usually a proven lie) can only be explained by the fact that the accused in question knew that he had committed the offence or whether it might be explained by another innocent reason such as, for example, panic or to escape or avoid an unfair accusation. Where lies are concerned, in many cases they can come about for other, nonculpable reasons such as panic or fear that the truth will be used wrongly to charge or convict. Typically, proven lies will be relevant to credit but not sufficient to indicate a consciousness of guilt.[6] As far as Hutchinson is concerned, he gave an explanation for his “post offence” conduct that was consistent with innocence (of murder).
[6] See generally Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234.
The evidence
The prosecution adduced a large body of testimonial and documentary evidence. Given that its two cases were each wholly circumstantial, it was necessary to do so. However, many aspects of the prosecution cases have either been admitted by Hutchinson in his evidence or have been admitted or not challenged by each accused as part of his submissions. As such, it is not necessary that I set out all of the prosecution evidence in these reasons. In this section I will summarise the evidence of the principal witnesses concerning the murder more generally. Other evidence more pertinent to the prosecution case against Hutchinson and its case against Wilson will be addressed under those headings. It is to be borne in mind that the fact that Russell has pleaded guilty is not relevant to and not admissible in the prosecution case against either Hutchinson or Wilson. However, Hutchinson’s evidence, given in court under oath, is admissible in both the prosecution case against and defence case for Wilson.
The crime scene evidence
The crime scene consisted of two locations; first, the house at 12 Tennyson Terrace and second, an area of scrubland off Point Road, Jervois where Mr Todd’s body was located. After considering the evidence of police officers who attended the Tennyson Terrace scene[7] and the photographs taken at that scene,[8] I am satisfied of the following matters concerning the scene at 12 Tennyson Terrace.
(i)As at about 11:10 am on Wednesday 11 December 2019, when Sergeant David Zauch arrived at 12 Tennyson Terrace to establish the forward command position, there was a distinct trail of bloodstains between just inside or just outside the bedroom occupied by Mr Todd and the timber decking and timber ramp leading from the rear (laundry) door to the backyard.
(ii)Sergeant Zauch also located clumps of what looked like hair just outside the door to the kitchen that leads into the hallway. This location was proximate to the blood trail.
(iii)Upon observation of the photos and having regard to the evidence of Detective Brevet Sergeant Natasha Douglas, a blood spatter expert with the SAPOL Forensic Response Section,[9] it is clear that the blood trail resulted from something being dragged from the area of Mr Todd’s bedroom door to the backyard.
(iv)Seized from the kitchen bench was a red handled claw hammer.[10]
[7]    Sergeant David Zauch, Detective Brevet Sergeant Debra Corfield, Brevet Sergeant Natasha Douglas and Detective Brevet Sergeant Robert Muskee.
[8]    Exhibits P5, P8 and P9.
[9]    There was no challenge to Ms Douglas’ evidence, and I accept it in any event.
[10] Exhibit P6 and P5 photos 4 and 5.
The evidence of crime scene examiner Sergeant Jason Wynne and exhibits P15 (sketch plan) and P16 (photographs) were essentially directed to the Point Road scrubland scene where the body of Mr Todd was located. The body was underneath a white quilt; rocks and other scrub debris were piled on top. A cream and white “wool bag” (also called a wool bale or a hessian sack by others) was over the top half of the body. It was heavily blood soaked and held in place by a red ratchet strap which belonged to Hutchinson. A black fabric belt was tied around Mr Todd’s neck.
Pathology evidence
The pathology evidence was given by Dr Cheryl Charlwood, an experienced forensic pathologist employed by Forensic Science SA. Neither Dr Charlwood’s qualifications and expertise nor her evidence was challenged and I accept both.
Dr Charlwood was called to the Point Road scene and attended at about 9:00 pm on the evening of 11 December 2019. She examined Mr Todd’s body in the location where it was found. After removing a quilt, rocks and other debris, Dr Charlwood’s initial observations were as follows.[11]
So after removing the quilt I could see a deceased adult male, he was laying prone, so facedown, legs slightly bent at the knees, part of his shin exposed on his right leg. I could see he was clothed. Some of his lower back was exposed and his head, shoulders and part of his torso were covered with a hessian sacking type material and that was heavily bloodstained around the head. He also had a metal ratchet and strapping secured - securing the sacking over the head. I've just described the position of his arms, and the left arm appeared to be bent underneath the body with the right close to his body with the fingers bent into the sand, into the dirt. I could see he was wearing black coloured jeans that had a belt on, a T-shirt and a jumper sweatshirt. I then sort of did a preliminary examination of the body. Rigor mortis was present, so the stiffening that occurs after death. The body still felt slightly warm to the touch. As part of maintaining evidence collection, we transferred the body over on to a body bag and did a further examination. We found a ventolin inhaler in the jeans pocket. Again, I've noted the heavy bloodstaining around the head and then, we didn't remove the sacking material at the time but lifted it and there was a black, what looked like a cloth belt around the neck. This had two metal loops and they were present on the right side of the neck. I noted there might be some bruising to the hands. I couldn't see any significant torso injury. There were, again as I mentioned before, ants present on the body and dirt adherent to the abdomen. So to maintain, again, the potential evidence we bagged the head, we kept the loose fractured strapping, we put that into a separate bag as well at the scene and bagged his hands as well. I did a rectal temperature at the scene and we photographed and did a swab before that - I did a swab, sorry, and then sealed the body bag and the body was transferred to Forensic Science SA for the autopsy and CT scan.
[11] T301-302.
Dr Charlwood prepared the body for removal to Forensic Science SA. She noted heavy bloodstaining around the head. The sacking material was not removed at this time but upon lifting it, Dr Charlwood observed a black cloth belt around the neck with two metal loops to the right side of the neck.[12] There was bruising to the hands but no significant torso injury was observed at that time.
[12] Exhibit P20.
Dr Charlwood had no difficulty in identifying blunt force head and neck injuries as the cause of death.[13] Either would have been sufficient but she was unable to say which of the two groups of injuries, in fact, caused death. Dr Charlwood explained the various mechanisms by which the compression of the neck ligature may have caused death and the various mechanisms by which the blunt force head injuries may have caused death.
[13] T302.
Dr Charlwood described and explained the effect of 12 laceration injuries to the head in great detail.[14] Eleven of the lacerations were a full thickness tearing of the scalp and of variable shapes – some linear, some stellate (almost star shaped) and irregular and others quite curved to v shaped. The lacerations were on both sides of the head, the frontal regions and the face. There were a number of substantial underlying fractures to the skull.
[14] T303ff.
Dr Charlwood explained her findings by reference to graphic photographs,[15] a detailed set of body charts[16] and a series of 3D images of the skull fractures created from CT scans.[17]
[15] Exhibit P29.
[16] Exhibit P30.
[17] Exhibit P31.
Dr Charlwood described the skull injuries in the following terms.[18]
Yes. So, as I said before, there were fractures to both sides of the skull, the right and the left. These were most marked on the left side of the skull and involved quite extensively the temporal region, so above the region of the ear, and these extended to the frontal region of the skull, around the eye and the left cheekbone, and also the front of the face regions and they extended back to the sort of parietal, just towards the back of the skull on that side. Similar fractures on the right side, just not quite as extensive, and particularly the ones on the left showed depression, so there was pushing in of those fragments towards the brain and a lot of them were - appeared quite, almost circular in the depressed areas. The fractures extended to the base of the skull, so the surface inside where the brain sits, so those fractures had extended through what's termed the middle and the frontal cranial fossa, under the surface of the brain as well.
[18] T305.
Dr Charlwood also identified physical injury to the brain itself,[19] indentation and compression injuries to the neck, and fractures on both sides of the hyoid bone, being the horseshoe shaped bone that lies at the top of the neck above the voice box. The latter could have been caused by either bi-lateral ligature compression or physical impacts to the neck.
[19] T330-331.
The deceased also suffered fractures to the area of the left shoulder blade. There was some bruising to the torso but few, if any, other injuries. According to Dr Charlwood, after considering all of the injuries together, considerable force would have been required to cause the underlying fractures.[20]
[20] T319.
I am satisfied that the target of such a brutal beating was the deceased’s head, including the face.
Dr Charlwood expressed the opinion that at least some of the head injuries could have been caused by the hammer found on the kitchen bench[21] including by the round end, the claw end and the flat of the head of the hammer.[22] She also expressed the opinion that either of two crowbars, one double ended[23] and one single ended,[24] could have caused some of the injuries[25] and that any of the facets of a small axe could have caused some of the injuries.[26]
[21] Exhibit P6.
[22] T320.
[23] P32.
[24] P33.
[25] T322-323. These two crowbars were found by police when searching 30 Hurtle Street, Woods Point. The relevance of this address will be explained below.
[26] Exhibit 83A, agreed fact 89. There is no small axe in evidence but Hutchinson, in his evidence, said that Russell used a small axe to kill Mr Todd.
Dr Charlwood said that the various lacerations to the head were clean in the sense that she did not observe any fragments from the bag or foreign debris such as dirt or foliage in them. Dr Charlwood was unable to express an opinion as to whether the injuries had been caused before or after the hessian bag was placed over the head. However, she was confident that the red ratchet strapping had been applied after the injuries had been sustained.[27]
[27] T321-322.
According to Dr Charlwood, whilst methamphetamine was found in the deceased’s system, it would have played no role in his death.[28]
[28] T329-330.
Axonal changes and the build-up of amyloid precursor protein (APP), identified following a neuro microscopy examination of the brain, indicated that Mr Todd would have survived for at least 35 minutes after the assault although most likely in an unconscious state.[29]
[29] T331-332.
Following my review of the evidence of Dr Charlwood and the various exhibits to which she referred, I am satisfied beyond reasonable doubt that the person or persons who inflicted the blunt force injuries to the head of Mr Todd and who inflicted the ligature injuries to Mr Todd, whether or not the same person, intended to kill Mr Todd or at least cause him really serious bodily harm.
The last two civilian witnesses to see Mr Todd alive
The prosecution adduced evidence from Steven Weeding concerning events that took place at 12 Tennyson Terrace during the day and night before Mr Todd’s death. Hutchinson gave evidence in his own defence of the circumstances in which he found himself when, on his case, he observed Russell kill Mr Todd without any prior warning to or involvement of Hutchinson.
Steven Weeding
Mr Weeding lived at 12 Tennyson Terrace with Mr Todd. The house has a very small footprint consisting of three bedrooms, a lounge room, a kitchen-meals area, and a tiny hall/alcove area which has doorways to the bathroom, the three bedrooms, the lounge and the kitchen-meals area. A doorway from the kitchen-meals area leads to the laundry and a rear door to the backyard. There is also an opening between the lounge and the kitchen-meals area. All of the rooms are extremely small.[30] Each of Mr Weeding and Mr Todd had a bedroom. The third bedroom had been given over to Mr Todd’s dog.[31] Russell was occupying a large garage/shed in the backyard and had been doing so since four or five days before Mr Todd was killed.[32] The men were living in extreme squalor. The house had the appearance of being little more than a flophouse used for taking drugs and sleeping.
[30] Exhibits P3 and P10 (floor plans), P2 and P4 (video walkthroughs), P5 (photographs).
[31] Gangster.
[32] Also in the shed was Mr Russell’s silver Commodore motor vehicle.
Mr Weeding was examined as to his movements and his observations of others on 10 and 11 December 2019. During his evidence, Mr Weeding offered various times or estimates of times when the events he described had taken place. Mr Weeding did so for the most part without referring to having noted the time on a clock, watch or mobile phone. Mr Weeding said he did not have a watch and relied on others telling him the time. He gave the impression of having some sort of innate capacity to know what the time was. I doubt that. His evidence in this respect was not seriously challenged and his reliability in this respect is not particularly important. The events and their order or sequence are of significance. Further, there is no doubt that Mr Weeding, and all of the other protagonists, were affected by drugs during the night before Mr Todd’s early morning death. My overarching impression is that all must have been substantially affected. They were not casual users; drug taking was the daily occupation of Russell, the accused, Mr Weeding and Mr Todd. They were regularly topping up.
Tuesday 10 December 2019

On 10 December, Mr Weeding went to Mr Wollaston’s[33] place for a couple of hours during the day but he spent the rest of the daytime at 12 Tennyson Terrace, mostly in his bedroom. Mr Todd was also at 12 Tennyson Terrace during the day. Mr Weeding said that he, Russell and Mr Todd were getting on well that day, although Mr Weeding did not see much of Russell that day because he was in and out. At about 9:00 pm, Mr Todd left the house to get $100 out of an ATM to buy amphetamines.
[33] Brett Wollaston, the partner of Tiffany Wilson, the sister of Terry Wilson.
Wilson and Russell came to 12 Tennyson Terrace at around 10.30 to 11:00 pm while Mr Todd was still out. They came in and the three of them sat in the kitchen while Wilson and Russell injected amphetamines. Wilson said that he had run into Mr Todd at Wilson’s girlfriend’s place but did not say anything further on this topic.
Mr Todd came back to 12 Tennyson Terrace while Russell and Wilson were still there. Mr Todd was furious with Wilson and said “Look here you black cunt, you just kicked me out of your girlfriend’s house and I’m telling you to get the fuck out of my house and don’t ever come back. If you don’t move on, I’ll ring the coppers”.[34] Wilson said he was going to punch Mr Todd and got up to do so, but Mr Weeding said “Hey, none of that’s going on in this house” and Wilson sat down again.[35] Mr Todd then said “I’m fucking serious, get out of my friggen house” and “You’re not welcome here, piss off or I’ll ring the police”.[36] Russell and Wilson immediately left, which was at around 11:00 to 11:30 pm after which Mr Todd and Mr Weeding had a shot of amphetamines and went to their own rooms.
Wednesday 11 December 2019
[34] T211.
[35] T211.
[36] T211.
Russell came back to 12 Tennyson Terrace at around 2:30 am. He asked Mr Weeding whether he wanted to smoke a couple of cones and they started smoking in the living room. A bit later, around 3:00 am, Hutchinson drove to the house in his red utility. He was looking for Russell and asked to smoke with them. Mr Weeding told both of them that at daylight he was going to leave to look for cigarette butts.[37]
[37] T221. Mr Weeding later explained that he had little money left from his pension after rent and food. It was his habit to collect butts, extract the remaining tobacco and roll cigarettes.
After they had been there for about 20 minutes, Hutchinson said to Russell “come on Dave, we’ve got things to do”.[38] After they left, Mr Weeding went into his bedroom and lay down. He gave this evidence concerning his mental state.[39]
[38] T214.
[39] T230.
A.Yeah. Didn't go to bed, I went and laid down.
Q.You went into your bedroom.
A.Yeah.
Q.You didn't go to sleep. Is that what you are saying.
A.No. You can't sleep on methamphetamines. You stay awake for days. I'm sorry, your Honour but that's what it does to you. Sorry what? What was the question?
Q.So on this night you'd had some methamphetamines.
A.Yes.
Q.And you'd also smoked some pot.
A.Pot, yep.
Q.So when you went to bed you were still feeling the effects of the meth.
A.Yes, I just said - someone is not listening.
Mr Weeding next saw Hutchinson and Russell in the backyard at around 4.00 to 4:15 am. He heard a car at the first set of gates on the property, looked out the bedroom window and saw Hutchinson’s utility with Hutchinson driving it. Russell got out of the car and opened the second set of gates. Mr Weeding went to the kitchen window and saw Hutchinson reverse the car along the driveway to the kitchen window, next to the ramp leading to the laundry. The two men got out and stared at each other for 30 seconds to a minute, got back in the car and drove off after closing the gates. Russell and Hutchinson did not talk to each other in this time.
Wilson came to 12 Tennyson Terrace at around 5:00 am. He asked Mr Weeding to smell some amphetamines and Mr Weeding tried to buy some from him. They were talking when Mr Todd came out of his room and told Wilson “Look here, do you think you could get it clear about them coppers last night, I told you I don’t want you fucking in my house ever again. Now get out or I’ll ring the fucking police, I’m telling you”.[40] During this time, Mr Todd might have again called Wilson a “black cunt”.[41] Wilson immediately left.
[40] T218.
[41] T219 – “might have called him a black cunt, I don’t know”.
At about 5:30 am, Russell came to the house. Mr Weeding saw him standing in the doorway of his bedroom and they had a conversation with Mr Todd. Mr Todd said “That fucking Terry [Wilson] been back here?” and “I’ll ring the coppers on him if he ever comes back again”.[42] Russell responded “You can’t ring the police, Ollie [Todd], that’s being a fucking dog”.[43] Mr Todd said “You don’t fucking like it, you can fuck off with the black cunt”.[44] After this, Russell “mellowed” out and asked Mr Todd if he wanted to smoke a cone and they had about two or three cones each.[45]
[42] T220.
[43] T220.
[44] T220.
[45] T220.
Russell then left. As he was leaving, he told Mr Weeding that he was off to score some pot and said he would give Mr Weeding a couple of buds. Mr Weeding said that Russell had never offered to bring him weed before. Mr Weeding attributed that to the fact that he did not like Russell and they had talked only about three times before.
At dawn, around 6:00 am, Mr Weeding went out to collect cigarette butts. When Mr Weeding left, Mr Todd was alone in the house, although Mr Weeding did not know if anyone was in the shed. Mr Weeding took his usual route that takes about one and a half hours. He got home at around 7:30 am. Footage from closed circuit television (CCTV) is consistent with and generally supports Mr Weeding’s account of being out of the house from about 6:00 am.
No one was there when Mr Weeding arrived home. He noticed the house was full of blood from one end to the other. A brown couch in the kitchen-meals area had been upturned while he was out. There was a hammer on the kitchen bench[46] which had not been there when he left.[47] The hammer was usually kept under the sink. A couple of days earlier, Russell had been looking under the sink and Mr Todd told him to stop because it was not his business.
[46] Exhibit P6.
[47] T225.
Mr Weeding called out to Mr Todd and Russell when he got home and then went over to one of his neighbours across the road, “Truckie” and his wife, and asked them to call the police for him.
I set out below a chronology of events just prior to midnight and during the early hours of 11 December, according to Mr Weeding.
(i)10:30 to 11:00 pm – Wilson and Russell arrived. Mr Todd and Wilson argued and Mr Todd kicked Wilson out of the house. Russell went with him.
(ii)2:30 am – Russell returned.
(iii)3:00 am – Hutchinson arrived.
(iv)3:20 am – after smoking cones, Russell and Hutchinson left.
(v)4:00 to 4:15 am – Mr Weeding saw Hutchinson and Russell in the backyard with the utility, staring at each other for 30 seconds to a minute before leaving.
(vi)5:00 am – Wilson arrived. Mr Todd again shouted at him and kicked him out.
(vii)5:30 am – Russell returned, had the conversation with Mr Todd about Wilson and then left.
(viii)6:00 am – Mr Weeding left the house, leaving Mr Todd alone in the house.
(ix)7:30 am – Mr Weeding returned.
Ned Hutchinson
The prosecution’s overarching submission concerning the evidence of Hutchinson is that, apart from admissions against interest, it should be rejected. The prosecution submits that it is littered with inconsistencies and untruths, is plainly self-serving and is in large part implausible. The prosecution has identified a large number of aspects of Hutchinson’s evidence falling within these categories of criticisms. I do not stay to set out these matters; there is significant force to the prosecution contention that, in a number of respects, Hutchinson’s evidence was either unreliable or untruthful. I remind myself that my rejection of various aspects of Hutchinson’s evidence as untruthful, unreliable or implausible is not, of itself, evidence of guilt. Whilst I put to one side and pay no regard to a number of aspects of Hutchinson’s evidence, I still must satisfy myself, on the basis of the evidence in this case that I do accept, that the prosecution has proved its case beyond reasonable doubt. A difficulty for the prosecution, in this respect, is that Hutchinson’s explanation for his conduct in only assisting Russell to dispose of the body, consistent with his being innocent of murder, is not directly challenged by any other evidence. To convict Hutchinson, I would need to be satisfied beyond reasonable doubt, on the basis of other evidence, that Hutchinson has also lied in this critical respect.
For the present, and in order to put the prosecution case at its highest, I will focus on the fundamentals of Hutchinson’s evidence and, in particular, those aspects that lend support to the prosecution case.
Hutchinson is 32 years old. In December 2019, he was living at 52 Mulgundawah Road, a house owned by his former partner, HS. Hutchinson and HS also owned or had some form of interest in 30 Hurtle Street, Woods Point where they had lived for a period until August 2019. The house at 30 Hurtle Street remained empty when Hutchinson moved out but he had retained a key and had left some of his possessions there.
Before proceeding further, I should explain some aspects of the relevant geography. The houses at 12 Tennyson Terrace, 80 Jarvis Avenue (Mr Wollaston and Tiff Wilson), 52 Mulgundawah Road (Hutchinson) and 11 Heddle Avenue (Kelly Paterson, Wilson’s girlfriend with whom he was living off and on) are all within the main residential area of Murray Bridge and are quite close to each other (walking and cycling distance). The latter three are within 1.5 kms of 12 Tennyson Terrace. The house at 30 Hurtle Street, Woods Point is about 15 kms to the south-east of 12 Tennyson Terrace. The Point Road, Jervois, where Mr Todd’s body was located, is about 5 kms further to the south-east.
Hutchinson made the following admissions. Unless otherwise indicated, the timeframe for his evidence is as at December 2019.
(i)He owned the red Navara utility which featured consistently throughout the evidence and which was used to transport Mr Todd’s body from 12 Tennyson Terrace to the Point Road location.
(ii)He owned ratchet straps which he kept in the Navara, at least one of which was used to bind Mr Todd’s head.
(iii)He had known Mr Wollaston as a close friend for over 10 years. He knew Tiff Wilson; they were in the same class at school. He regularly visited the Wollaston house to “hang out” in their shed with others.
(iv)He had known Wilson for about six months. He had met Wilson through Mr Wollaston and knew that he was Tiff Wilson’s brother.
(v)He had known Russell for about five months. He knew him as “Crazy Dave” because he acted crazy towards everyone and was reputed to have a violent disposition.
(vi)He knew Mr Todd and had no issues with him.
(vii)He had known and been friendly with Mr Weeding for about six months.
(viii)He knew K, the daughter of Mr Wollaston and Tiff Wilson. He had not been present when Mr Todd is alleged to have inappropriately touched K. In his evidence in chief, he denied having heard about this incident before the trial. However, he conceded during cross-examination that he had known about the incident prior to Mr Todd’s death.
(ix)He obtained methamphetamine and cannabis from Mr Wollaston and others in the Murray Bridge area. He knew that others including Mr Todd, Russell and Mr Weeding obtained drugs at 80 Jarvis Avenue and that people would consume drugs in the shed there.
(x)He used a phone that Tiff Wilson had given him. However, it had battery problems and would go flat within a minute of use unless connected to a charger. He let anyone use it.
(xi)He regularly deleted recent calls and texts because he thought it would make the phone run faster.
Hutchinson provided an account of his movements and whereabouts on the night and early morning of 10 and 11 December 2019. I accept that Hutchinson’s account was exposed during cross-examination as, in parts, lacking plausibility, as being internally inconsistent and as being inconsistent with other evidence. This renders it difficult to know which aspects of Hutchinson’s evidence, not supported by or consistent with other evidence, can be accepted as truthful and reliable. However, that, of itself, does not mean that the essence of his evidence as to his conduct that night with respect to Mr Todd and his denial of having any knowing involvement in his murder must be false; that is, it might still be accepted as reasonably possible.
The essence of Hutchinson’s account was as follows. During the evening of 10 December, he had been with Mr Wollaston and another friend, Jared Hinds, at the local hotel after which they returned to 80 Jarvis Avenue. Wollaston went into the house and Hutchinson went into the shed. He had some bongs with Mr Hinds and another man called Craig and passed out on the couch. Hutchinson woke up at about 3:15 am; it was cold and the fire had gone out. Wilson had earlier that day borrowed a “pit” bike belonging to Hutchinson and he went outside to see if the bike had been returned; it had not.
Hutchinson rang Wilson but received no answer and then he rang Russell as Russell had been helping Wilson fix the bike earlier in the day. Phone records confirm a five second call from Hutchinson’s phone to Wilson’s phone at 3:27 am and a call to Russell’s phone of 14 seconds at 3:31 am. The phone records disclose a phone call lasting six seconds from Ms Paterson’s phone to Hutchinson’s phone at 3:46 am. According to Ms Paterson, she did not make that call. Hutchinson said that he then tried to call Wilson again; the call connected but he could not understand what Wilson was saying. However, the phone records disclose a call from Wilson’s phone to Hutchinson’s phone of one minute and five seconds at 4:02 am.
Hutchinson then went to look for Wilson at Ms Paterson’s house. Ms Paterson said in her evidence that Hutchinson came looking for Wilson just before 5:00 am and that Wilson phoned her just after Hutchinson left. The phone records disclose a call from Wilson to Ms Paterson at 4:51 am.
Hutchinson said that he then went to 12 Tennyson Terrace, just before 5:00 am, still looking for Wilson and the pit bike. Hutchinson went inside and shared a few bongs with Russell and Mr Weeding. Russell asked Hutchinson to help him collect some of his possessions from another house and move them into the shed at 12 Tennyson Terrace. Hutchinson and Russell then went to 80 Jarvis Avenue to get smokes, then back to Tennyson Terrace for a short time before leaving to obtain $8.01 worth of diesel for the Navara. They then went to another nearby address to collect Russell’s boxes and returned to Tennyson Terrace. Whilst Hutchinson unloaded the boxes into the shed, Russell went into the house through the back door. Hutchinson’s evidence in chief continued as follows.[48]
[48] T814-822.
Q.You told us that you went in through the back door, where did you go when you went in through the back door.
A.So I walked through the laundry then through the kitchen to the lounge room. I looked down into the hallway and Ollie and Dave were fighting in the central hallway, I suppose you call it.
..  .  .
Q.Can you tell us in detail what it was that you saw, that is, what was happening between Dave and Ollie.
A.So Dave and Ollie were having a bit of a fight, I suppose. They were both sort of wrestling on the ground. Dave was - looked like he was winning, he was punching Ollie. The dog that was at the house was, I don't know, I guess trying to be protective of Ollie. He was, like, growling and barking and trying to get in the middle of them.
Q.What did you do when you saw all of that happening.
A.So I walked into the hallway, I grabbed the dog by the collar and put it in what I knew as Henry's room, it's the room - bedroom 1.
Q.Bedroom 1 on P3.
A.Yes. I then grabbed Dave off of Ollie, sort of dragged him off. I said 'What are you doing?', he just sort of - he stood up and then he took off behind me.
Q.Did he say anything to you.
A.No.
Q.After Dave took off behind you what did you do.
A.So I sort of picked Ollie up off the ground or sat him up a bit. I asked him 'Are you okay? What's going on there?'.
Q.Was Ollie conscious at that time.
A.Yes.
Q.Did he respond to you at all when you asked him whether he was okay.
A.Yes, he sort of just - he mumbled the words like 'Fucking Dave'.
Q.Was there anyone else at the house other than you, Dave and Ollie at this time.
A.No.
Q.Was Ollie tied to a chair at this time.
A.No.
Q.Did you see Ollie tied to a chair or a stool at all that night at Tennyson Terrace.
A.No.
Q.Did Ollie have anything over his head at that time.
A.No.
Q.Did he have anything around his neck at that time.
A.No.
..  .  .
Q.You say Dave came running back in, what did Dave do.
A.So Dave came running back in, he sort of grabbed me, threw me out the way to sort of - because I was crouching down, I sort of stepped back a couple steps sort of into the doorway, I suppose, of the lounge, the lounge and the hallway. And then Dave, he struck Ollie with a - what appeared to be a small axe.
Q.Had you seen that axe before you saw it at that time.
A.No.
Q.Did you see where Dave struck, whereabouts on Ollie Dave struck him with that axe.
A.He - so he was kind of standing - I was - Dave would have been standing in between us.
Q.Between you and Ollie.
A.Yep. He took a big swing, I just remember seeing the shiny head of the axe and the wooden handle. Dave - Ollie, Ollie yelled out like 'No Dave', before he could finish the word 'Dave' Dave had hit him, I believe in the top of the head somewhere with the axe.
Q.Did you have a clear vision of Ollie at that time.
A.Not hundred-per-cent clear.
Q.Why not.
A.Because Dave was standing in between us. I was standing in the door - like, the doorframe of the lounge room.
Q.Is that the door between the lounge and the hallway.
A.Yes.
Q.After Dave hit Ollie with that small axe, what happened.
A.Ollie is sort of instantly - it was kind of like he was screaming but he couldn't scream, he was like gargling through his nose. Then Dave hit him a second time and he stopped making any - all noises altogether. Dave just kept hitting him, probably seven times at least that I remember.
Q.Where were you when that was happening.
A.I was sort of walking backwards in the lounge room, thinking 'What the fuck? Why the fuck did he do that?'.
Q.Did you say anything out loud while you were there.
A.I think I was saying 'What the fuck, Dave? Why the fuck?' and just kept thinking 'Fuck, fuck'.
Q.Did Dave say anything to you at that time when you were saying that to him.
A.No.
Q.Did you hear Dave say anything during that time when you saw him striking Ollie with the weapon.
A.No.
Q.What did you do next, Mr Hutchinson.
A.So I sort of walked - Dave - I walked into the kitchen and then I walked back into the lounge room and Dave had stopped hitting him. I said - I asked him, I said What the fuck did you do that for? Why did you do that?' He sort of turned around and looked at me. He smiled. I said 'What are you smiling about?' He then proceeded to walk up to me and he said to me 'Now you are going to help me', and I said to him 'What do you mean I'm going to help you?', he said 'You are going to help me or you are going to be next'.
..  .  .
Q.Now after Dave said that to you what did you do.
A.I just said 'Okay, I'll do whatever you want me to do'.
Q.How were you feeling at that time, Mr Hutchinson.
A.I was in shock. Or what I believe was shock. I had never seen anything like that before. Yeah, I was just in shock. I felt sick. So I went - I just said to him 'I'm going to wait outside' so I went and stood on the back verandah for probably 10 to 15 minutes maybe.
Q.How long do you think you had been in the house up until that point, that is when you left to go out the back.
A.In the house, not even five minutes.
Q.You said you went outside to the back verandah because you were feeling sick.
A.Yes.
Q.Before you went out there did you go up and check on Ollie at all.
A.No.
Q.Did you go back into that lounge room or into the hallway at that time.
A.No.
Q.Did you go directly from where you were in the lounge room/meals door out to the back of the house.
A.Yes.
Q.When you were outside the house what were you doing.
A.I was just leaning on the back verandah railing, I don't know, trying contemplate what had just happened.
Q.Did you end up being physically sick, Mr Hutchinson.
A.No.
Q.Did you go back inside the house at all after you'd been outside on that back verandah for, I think you said, about 10 or 15 minutes.
A.Yes. Dave called me back inside.
Q.What did he say.
A.He said 'Ned' - he yelled out 'Ned. Come and help me'. I walked back inside and he - Ollie was already - he was wrapped up in a blanket and he had something over his head but I didn't know what it was over his head. I thought it was a pillowcase or something.

Hutchinson thereafter provided a detailed account of how he assisted Russell to take Mr Todd’s body from the house to the Navara, to drive out to the Point Road, Jervois and dispose of the body and to clean up the Navara at 30 Hurtle Street and dispose of various items of evidence.
It can be seen that Hutchinson’s account broadly tracks the prosecution case against him but for the allegation that he was a party to and a participant in a joint criminal enterprise to kill Mr Todd. As part of its case, the prosecution adduced extensive evidence from which I infer that Mr Todd’s DNA was deposited in the Navara and on clothing worn by Hutchinson, extensive CCTV evidence which allowed the travels of Hutchinson’s Navara to be tracked, extensive telephone record evidence which allowed the location and operation of Hutchinson’s phone to be tracked and other eyewitness evidence of events concerning Hutchinson and the Navara both before and after the killing of Mr Todd. It is not necessary to explain all of this evidence in any detail. All of it can be seen as consistent with both the prosecution and the defence cases. None of this evidence provides direct assistance on the question of whether Hutchinson was telling the truth about what happened at 12 Tennyson Terrace when Mr Todd was killed.
The prosecution circumstantial evidence case against Hutchinson
At the beginning of its written closing address, the prosecution summarised its case against Hutchinson as follows.
(i)The murder was the subject of some discussion and planning that probably occurred between around 1:00 am and 3:30 am, after Hutchinson and Mr Wollaston returned to 80 Jarvis Avenue from the Murray Bridge Hotel.
(ii)Hutchinson made and received calls with Wilson and Russell from 3:27 am to 4:02 am for the purpose of meeting with them, during which time it is alleged the plan to murder Mr Todd was on foot.
(iii)Hutchinson attended 12 Tennyson Terrace on two earlier occasions on the morning of 11 December 2019, namely:
(a) at around 3:00 am (according to Mr Weeding) or probably shortly after 3:30 am – that is, after Hutchinson’s call to Russell at 3:31 am – where after having some cones there, he “[said] to Dave, ‘Come on Dave we’ve got things to do’ and they both jumped up and left”.[49]
(b) at “around 4, maybe quarter past 4 [am]”,[50] when Hutchinson reversed the Navara into the driveway “up to the back ramp of the house right beside the kitchen window”.[51]
(iv)Hutchinson and Russell purchased the $8 worth of diesel for the specific purpose of driving out to the Jervois quarry site to dispose of Mr Todd’s body.
(v)Hutchinson and Russell drove directly from the Shell Service Station, where the $8 worth of diesel was purchased, to 12 Tennyson Terrace.[52]
(vi)Wilson was in the vicinity of 12 Tennyson Terrace from about 5:53 am, when his second phone service connected to the cell network in an area that includes 12 Tennyson Terrace and 80 Jarvis Avenue. On the prosecution case, he converged on the house at around the same time Hutchinson and Russell did. This may be inferred from the close correlation between CCTV footage of the Navara heading to Tennyson Terrace at 5:54 am and that phone event.
Before proceeding further, I make the following brief observations. Items (i), (ii), (iv) and (vi) (in part) are not supported by direct evidence. They represent conclusions which the prosecution maintains should be inferred from other evidence.
[49] T214.
[50] T216.
[51] T216.
[52] T167-168.
The prosecution, in its closing address, expanded on these six propositions at some length. In addition, the issue of a potential motive arises on the evidence, although the prosecution did not develop this issue with respect to Hutchinson in its written closing address.
Motive
Without going into detail, there is evidence in support of the contention that both Wilson and Hutchinson may have been motivated to harm Mr Todd. There was an incident some weeks or months prior to Mr Todd’s death. He is said to have touched Mr Wollaston’s young nine-year-old daughter, K, inappropriately in front of various family and friends. The indecent assault (if such it was) was relatively minor; it involved touching K on the side of her chest over her singlet. Nevertheless, it infuriated Mr Wollaston and others. Mr Todd was punched and forcibly removed from the house and told not to come back. In a sense, the incident had been finalised. However, it would seem that Mr Wollaston ruminated on this event and on the fact that, because he had lost part of his leg in an accident, he had been unable to “deal” with Mr Todd himself.
Bradley Newton-Rodgers was present during the incident concerning K. At the time, he was in a relationship with Tasmin Wilson, the sister of Tiffany Wilson (K’s mother) and of the accused, Wilson. He gave the following evidence of his observations of how Mr Wollaston reacted.[53]
[53] T399-400.
Q.Did you see Brett's response during this incident.
A.Yeah, he just seemed, like, he didn't want anything to do with it. Just like he didn't want to have nothing to hear about it. He seemed a bit distraught because his daughter just got touched and he was sort like punching himself like he let it happen and shit.
Q.Did you say just then he punched himself for letting it happen.
A.Yeah. He attacked Adam for, like, got shitty with himself, depressed with himself because if he had his leg basically he would have been able to do something but he didn't so he couldn't do anything.
Q.What did you say about his leg.
A.Because he has only got one leg most of his depression came back to if he had a leg he would be able to stand up and tell Ollie don't touch my daughter basically.
Q.What was the problem with his leg.
A.He is only got one.
Q.Was it from some accident or incident.
A.Years ago he was riding a motorbike with thongs on and decided to put his foot out and buggered up his leg and then he didn't really look after it and it got chopped off.
According to Mr Newton-Rodgers, Mr Wollaston talked about this incident from time to time and remained very upset.[54]
[54] T401-402.
A.Normally when drinking out in the shed with Brett he'd normally get angry and, like, explain how he wanted him, like, wished he was gone, wished he was dead and shit because he couldn't do fuck all about it to stay - like, to stop him, like, touching his daughter and stuff.
.. . .
A.He's been drunk with me before and told me he wishes the cunt was dead because there was nothing he could do about it. While I was -
XN
Q.So that's something you actually heard Brett Wollaston say.
A.Yes, while I was sitting in the shed next to him.
Q.Did you also say that Brett used to say these things if he got drunk and was drinking.
A.Yep, he'd say it when he was sober but not as much.
Q.Would he say it more often or more openly when he was drunk.
A.Yep. He got that emotional at one point that he poured gasoline over himself and set himself on fire because he couldn't stop it happening, so.
Q.That's something you saw, did you.
A.Yeah, we all had to go over to him and put him out.
Mr Newton-Rodgers said that he heard Mr Wollaston say similar things to two other people.
Similarly, Mr Wollaston was present on the day that Russell was arrested, as captured on video.[55] When the whereabouts of Mr Todd was raised, Mr Wollaston can be heard to say, “I hope he’s at the bottom of the river”.
[55] Exhibit P40.
Both of those bodies of evidence were admitted as being evidence of Mr Wollaston’s continuing state of mind following the incident with K. I am satisfied that Mr Wollaston had an enduring grudge against Mr Todd. There is no direct evidence that Mr Wollaston expressed these views to Hutchinson or Wilson (neither of whom were present at the time of the incident). However, Wilson was family and Hutchinson was a close friend of Mr Wollaston. Each spent significant periods of time with Mr Wollaston. It was Mr Wollaston who made his shed available to them and others at all times of the day and night. It was Mr Wollaston who supplied both with drugs from time to time, often on “tick”. I draw the inference that both Hutchinson and Wilson were well aware of Mr Wollaston’s anger towards Mr Todd and his feelings of inadequacy concerning the incident with K.
I am satisfied that the friendship with Mr Wollaston, in the circumstances I have outlined, was capable of constituting or contributing to a motive for both Hutchinson and Wilson to harm Mr Todd.
As far as Hutchinson is concerned, the prosecution also relies on the fact that his phone obtained access to a news article about the sentencing of a child rapist at 5:31 am on 10 December 2019, that is, the early morning of the day before Mr Todd was killed. As best I understand the prosecution contention, it is to be inferred that Hutchinson, some 24 hours before the killing of Mr Todd, had been focussing his thoughts on child sex offenders. It is not clear on the evidence how the article appeared on the phone. The forensic evidence is to the effect that the article had not been specifically searched for on the phone. Rather, the article appeared as part of the Channel 9 news feed and had been accessed through that feed.[56] The accessing of this news story is a factor, although of slight probative value, to be considered in the context of motive as far as Hutchinson is concerned.
[56] T561-562 (Detective Byers).
In addition, Wilson had argued with Mr Todd during the 24 hours before he was killed. Very harsh words were exchanged. According to Ms Paterson (Wilson’s on and off girlfriend) Wilson was a jealous person. I infer from her evidence that Wilson was particularly upset about Mr Todd having been at Ms Paterson’s house earlier on the day in question. I am satisfied that the nature of Wilson’s relationship with Mr Todd may have contributed to a motive in Wilson to cause him harm.
I return to the prosecution case against Hutchinson specifically. The prosecution relies on an accumulation of contended for factual findings which it submits, when considered as a whole, support each of the propositions in (i) to (vi) above.
Joint criminal enterprise
The prosecution case is that the murder was premeditated; by prior agreement Russell and the accused all attended at 12 Tennyson Terrace at or soon after 5:53 am with the common intention to kill or cause really serious bodily harm to Mr Todd. It is not the prosecution case that once on site the three men spontaneously assisted each other to assault Mr Todd.
The facts that Mr Todd was killed soon after 5:57 am in the presence of Hutchinson and that Hutchinson and Russell immediately disposed of his body by driving from Tennyson Terrace to the Point Road, Jervois in Hutchinson’s Navara – admitted by Hutchinson and supported by the CCTV and other evidence – are relevant to the question of whether Hutchinson was party to a relevant agreement or understanding at least with Russell. However, the evidence that such an agreement or understanding had previously been arrived at is scant. It, in essence, consists of the following.
Opportunity to arrive at an agreement
Russell and Hutchinson knew each other and were in each other’s company from time to time during the hours before the murder. Presumably, they spoke to each other. However, as to any potentially inculpatory conversation between them, at best for the prosecution is Mr Weeding’s evidence of the statement by Hutchinson to Russell, when leaving 12 Tennyson Terrace at about 3:00 am, “come on Dave, we’ve got things to do”. There is no context and it is of such generality that, considered in isolation, one can only speculate as to its meaning. It is consistent with Hutchinson’s evidence that he was to assist Russell collect and move his possessions. Nevertheless, like all of the circumstances relied on by the prosecution, this statement is not to be considered in isolation but together with the whole of the evidence relied on by the prosecution.
Preparatory conduct
Russell and Hutchinson again attended at 12 Tennyson Terrace at about 4:00 am. Hutchinson reversed the Navara along the driveway and stopped adjacent to the wooden ramp that leads from the porch outside the back door. Both men got out and stared at each other for 30 seconds to a minute but said nothing before leaving. If Mr Weeding’s account of this incident is reliable, it certainly was peculiar behaviour. The prosecution contends that the two men were there to examine the scene in order to prepare for the planned murder; presumably, the means of access and practicality of getting Mr Todd’s body out of the house and into the tray of the Navara. Such an inference is open on all of the evidence. However, it seems unlikely.
I received evidence including photographs of the layout of the house, the backyard, the back door from the laundry, the porch and the ramp. I attended a view which assisted me to understand this evidence. Furthermore, both Hutchinson and Russell were very familiar with the internal and external features of the property. The backyard is flat and it is easy to drive a utility vehicle in and park it close to the ramp. It is obviously possible to manhandle a large object, such as a body, out through the back door and down the ramp to a parked utility vehicle. This must already have been known to Hutchinson and Russell. It would seem to have been quite unnecessary for such a scoping exercise to have been undertaken. Nevertheless, it is peculiar conduct, not reliably explained by Hutchinson, that must be taken into account when considering the whole of the circumstantial case.
Telephone interactions
The prosecution relies on telephone contact engaged in by Russell and the accused in the early hours of the morning shortly before the killing of Mr Todd. Those involving Hutchinson have been referred to earlier. There also was a series of text messages between Hutchinson and Wilson on 10 December, the contents of which is in evidence.[57] I agree with the Hutchinson submission that all (on their face) were innocuous.
[57] Exhibit P66, tab 4-8.
There was telephone contact of some description when Hutchinson called Wilson at 3:27 am on 11 December (duration: 5 seconds), when Hutchinson called Russell at 3:31 am on 11 December (duration: 14 seconds) and when Wilson called Hutchinson at 4:02 am on 11 December (duration: 1 minute and 5 seconds). It is possible that the purpose of these calls was to arrange the killing of Mr Todd later that morning or, given their short durations, to organise, confirm or finalise an arrangement previously entered into.
In this respect, I note that according to Mr Weeding, it was at about 3:00 am that he told Russell and Hutchinson that he was planning to go out at daybreak to look for cigarette butts. That is, it was only at or about 3:00 am that Russell and Hutchinson were on notice that Mr Todd would then be alone in the house. There is no direct evidence that Wilson was on notice of this. Any arrangement to assault Mr Todd later that morning, if arrived at, most likely would have come about after 3:00 am, just prior to or during the three telephone calls.
The proximity of the calls to the time of the killing and the fact that they occurred in close proximity to each other and in the early hours of the morning (sleeping time for most people) adds weight to this possibility. However, Russell and the accused were habitually active during the night hours. More importantly, there is no evidence of what was said during these short phone calls. Further, there is no evidence of any relevant discussions involving Hutchinson or Wilson, for that matter, prior thereto. The evidence discloses that there was no telephone contact involving Hutchinson’s phone between 7:55 pm on 10 December and 3:27 am on 11 December.
The accused and Russell at 12 Tennyson Terrace at the time of the killing
It is common ground between the prosecution and Hutchinson that both Hutchinson and Russell were together and present at 12 Tennyson Terrace shortly before and at the time of the killing of Mr Todd. The prosecution also relies on mobile phone cell tower evidence that Wilson was in the “vicinity” of 12 Tennyson Terrace from about 5:53 am. At about this time, one of the phone services he had been using connected to the 320 degrees sector of the Murray Bridge South cell tower, an area that covers 12 Tennyson Terrace. The prosecution contends that it should be inferred that Wilson “converged” on 12 Tennyson Terrace at or about the time that Russell and Hutchinson attended at or around 6:00 am.
This inference is open on the evidence. However, the cell tower in question embraces (and can capture the presence of mobile phones throughout) a very large area.[58] The Murray Bridge South 320 degrees sector included, in its coverage, 52 Mulgundawah Drive (Hutchinson’s house) and 80 Jarvis Avenue (Mr Wollaston’s house) as well as 12 Tennyson Terrace. It can be seen from the aerial map[59] that the sector covered by this cell tower includes at least 40 streets and many hundreds of houses.
[58] Exhibits P1, 1D68 (maps of cell towers coverage).
[59] Exhibit 1D68.
The fact that a phone service used by Wilson was in the area embraced by the cell tower that also captured phone presence or activity at or near 12 Tennyson Terrace is not, on its own, surprising.
Hutchinson’s phone conduct
The evidence discloses that Hutchinson’s phone became disconnected from the network between 6:03 am and 8:52 am.[60] The prosecution presses an inference that Hutchinson switched off his phone in order to avoid his location being tracked or identified. Again, I accept that such an inference is open on the evidence. However, Detective Byers in evidence accepted that this disconnection was also consistent with the phone turning itself off if its battery was flat and powering on again when connected to a charger.[61]
[60] Exhibit P66, tab 23, page 2.
[61] T591.
This event is also consistent with Hutchinson’s evidence that his phone had battery problems and needed regular and constant charging.
Hutchinson in evidence stated that he routinely deleted calls from his phone’s call history in order to maintain a “clean” phone and to preserve battery life. He said that he carried out a complete call history deletion on the afternoon of 11 December 2019.[62] However, only five calls between Hutchinson and Wilson, those between 7:51 pm on 10 December and 4:02 am on 11 December, were deleted according to the phone records in evidence.[63] Further, a number of text messages between Hutchinson and Wilson earlier on 10 December had not been deleted.[64]
[62] T857-858.
[63] Exhibit P67 page 5, T594.
[64] T594.
The prosecution also relies on the fact that Hutchinson’s phone was found at Mr Wollaston’s house after Hutchinson’s arrest and contends that he, in effect, tried to hide it there. Ultimately, the prosecution contends that Hutchinson’s conduct with respect to his phone after Mr Todd had been killed, as outlined above, was indicative of a consciousness of guilt.
I accept the defence submission that the leaving of the phone with Mr Wollaston was, objectively, a foolish attempt to hide it and unlikely to be successful. In any event, the overarching difficulty for the prosecution is that this conduct by Hutchinson and the lies he probably told with respect to it are also consistent with a fear of being falsely inculpated in the murder of Mr Todd in the event that Hutchinson did, in fact, only become involved after Russell alone had killed Mr Todd.
The fuel purchase
The prosecution relies on uncontested evidence that shortly before 6:00 am on 11 December 2019, Hutchinson and Russell left 12 Tennyson Terrace in the Navara to purchase $8.01 of fuel before returning. Earlier in the day, $10.00 of fuel had been purchased and paid for by Mr Wollaston. The small quantities of fuel and the fact that Mr Wollaston paid for the first lot are indicative of Hutchinson’s financial position at the time. Notwithstanding that Hutchinson’s red fuel light was on at the time of the $8.01 purchase, it is evident that the Navara had sufficient fuel to drive Mr Todd’s body to the Point Road, Jervois, some 20 or so kilometres from 12 Tennyson Terrace, and back again. The prosecution contends that the $8.01 purchase was made because Hutchinson knew that Mr Todd was to be killed soon after 6:00 am and that his body would have to be so transported; that is, the joint criminal enterprise agreement was in place at that time. Hutchinson’s evidence was to the effect that his fuel light was on and that he had agreed with Russell to drive him to another house to collect his belongings and bring them to 12 Tennyson Terrace.

Accepted into evidence were recordings of conversations engaged in by a number of persons including Wilson during the night of 10 and 11 February 2020, captured by a covert listening device located in the lounge room of the Wollaston house.[100] The prosecution relies on aspects of the recordings during the 30 minute period from 12:48 am to 1:18 am on 11 February 2020. Also received, but strictly as aides memoire and to be resorted to, if necessary, only after a concerted effort to discern the words used in the recording had been made, was a transcript of the 30 minute period relied on and a cross-referencing schedule of portions relied on.[101]
[100] Exhibits P71, P72 and P72A.
[101] MFI-P77 and MFI-P78.
The recording is extremely difficult to listen to and to understand. There is much loud banging and clashing, more than one person talking at various times and other extraneous background noise. I am confident, for reasons given earlier, that I can identify Wilson’s voice from time to time. However, he spoke so quickly and in a staccato fashion while running thoughts together without finishing sentences or thoughts before moving on, that I have found it extremely difficult, if not impossible, to discern what he was saying most of the time.
The transcript (MFI-P77) was prepared by detectives after listening to the audio over and over again many times. I, too, have listened to the recordings with good quality headphones a number of times but with respect to a number of passages relied on by the prosecution I have been unable to discern all of the words used even with the assistance of the transcript. The evidence before me is the recording, not the transcript. I am not satisfied that the evidence adduced concerning the means of creating the transcript is sufficient for me to find that any of the detectives who engaged in the process have become an ad hoc expert in deciphering the words used by Wilson in the recording.
I provide the following examples (from the transcript) of extended passages by Wilson so as to assist in understanding: Wilson’s confusing style of speech; the amount of material not able to be heard or understood even by the transcribers after many hearings; and the potential importance of context, or lack thereof, to an understanding of what is said.[102]
[102] MFI-P77 at pages 1-2 and pages 19-20.
TW:…listen to me, oi, twin turbo, diesel, look here, brand new BM dub, Brett? You can’t sell it, even though they’re legit, they’re from something that I did. You want the Maloo back? For a thousand bucks? I’m gonna win, look at me, on my nana’s, my dead nana’s grave I’m going …(words unclear)… I’m gonna win over a thousand dollars and guess what? …(words unclear)… I think …(words unclear)… in the head, brother look, I thought you was with some junkie drunk …(words unclear)… pull it together, is what you say. Brett, play that one song …(words unclear)…
UNK. MALE:     …(words unclear)…
TW:…(words unclear)… last day …(words unclear)… the other side …(words unclear)… cops can’t …(words unclear)… house like this already paid for …(words unclear)… two months …(words unclear)… mother fucken …(words unclear)… the worsts that could come out of it …(words unclear)… get the cops through, is like, see that, that’s a dig in a little fucken arm, like Magic …(words unclear)… casper, a bitch like fucken Nathaniel slipped through your cane, look at me. Crikey, brother, how’d my mates do that? I made the group …(words unclear)… a couple above. Tiffy? Two months, four hundred and fifty (450) grand, look here, you, your choice. Legit business, not stocks, yeah open up your own car shop, um, restorations, alright. You open up your own tyre fitting, I’ll get you one hundred and fifty (150) stores …(words unclear)… look here …(words unclear)…
..  .  .
TW:The cunts who took brother? That’s who mingling in his hood, look, it was under his family look here. I get it, every one of em too. You ever seen a fucken tree, when it comes autumn?
UNK. FEMALE:   Yeah
TW:Brother I, I asked for a can of …(words unclear)… all night, and he blew a lid …(words unclear)… oi, he said, I’m getting sick of ya. Are you a boner? …(words unclear)… I said no I haven’t worked out what we’re gettin. Can you skin, I think, fifty kilo fucken ah, ah bull, in fifteen (15) seconds? I said you know what, my brother can, and he’s humble, and he don’t take …(words unclear)… he’s all about family
UNK. MALE:     Yeah we’re like that
TW:And he goes you know my sister you work with her, and he went to go me and I was standin there …(words unclear)… brother already don’t, yet you know let me get my meds wait for the screws to go brother my ass was puckering for a week and he goes look, I said my brother look two hundred (200) point oh (0) up ten (10) years …(words unclear)… three (3) weeks off, oi, yeah Lachie? I’ve got motorbikes here
UNK. MALE:     …(words unclear)… Mummy’s screamin about our sweets
TW:Look at her. That woman, don’t talk about her, that woman, look here look here that’s her new brother had twenty (20) kids to look here and I said my sister’s a queen, my brother, he’s the hard man with a hard heart he’s …(words unclear)… I said that cunt over and beat me and yous fellas …(words unclear)… floor you go how does it feel to get your own eh? We were all on lockdown today brother, looking, yesterday, code black, code black you know what that means? Nothing to do, all the way from, detention, look here had to get a friend to come and tell you, just watchin the news eh? I said tonight brother I’m not getting out brother I’m gonna get out tomorrow
These are just two extended examples of many. I turn now to consider the specific extracts relied on by the prosecution.
Shortly after five minutes into the 30 minute recording,[103] the following occurs according to the transcript.[104]
[103] Exhibit P72A.
[104] MFI-P77 at pages 4-5.
TW:…(words unclear)… turbo. The queen’s here for the punching, oi, and she’s your blood, I’m like I’ll take Tia or I’ll take him. You like that? Nah, no
UNK. MALE:     Trust me Willis, name of the game, blood in blood out (Possibly TW speaking)
BW:Fuck the aso’s
UNK. MALE:     Bro …(words unclear)… come here
UNK. MALE:     …(words unclear)… bro. I don’t …(words unclear)… think you know bro
BW:I didn’t tell the cunt any of that
UNK. MALE:     No you never
5:38 elapsed:
TW:Na give me, swap, swap, swap, swap please fucken. He gets on my nerve…
BW:…(words unclear)…
TW:…and killed him
BW:Hey hey hey…
TW:Hey…
BW:…you can’t do nothing
TW:…do this to me
UNK. MALE:     Yeah?
TW:Willis? I got nothing brother, I need to sober up. Might be my father-in-law comin, with some proper huppo to get on
BW refers to Brett Wollaston.
The prosecution relies on the words at about five minutes and 38 seconds, “He gets on my nerve… and killed him”. I do hear what might be understood as these words on the recording. The partial statement appears to have come out of the blue. There is no discernible context. The lead up to the words gives no clue. There is nothing to suggest who Wilson is speaking of, to whom Wilson might be referring as having “killed him” (whether himself or some other person) or what time period is being referred to. The words “Na give me, swap, swap, swap, swap please fucken” are very hard to decipher but in my view are wrongly attributed to Wilson in the transcript. These were more likely said by BW. I agree with the defence that it is hard to make out all of what Wilson might have said. The “and” in “and killed him” might have been “en”, that is, the last syllable of a different word, perhaps “fucken”.
Similarly, “killed” might actually be “kill”, that is, future tense, suggesting what Wilson might do to whomever it is that gets on his nerves – “… I’ll fucken kill him”.
The next two passages the prosecution relies on occur shortly after six minutes into the recording.[105]
[105] MFI-P77 at pages 5-6.
TW:It takes three (3) people to be weak …(words unclear)…
UNK. MALE: …(words unclear)… oi
6:26 elapsed:
TW:I hit him, head high Tiffy, and that was from me, you hear me? …(words unclear)… four hundred and fifty grand (450,000) …(words unclear)…
UNK. MALE: Tiffy, hundred percent …(words unclear)… what do you do with the little …(words unclear)… and you rest. Hey Matty …(words unclear)… third year …(words unclear)…
I agree that the transcription “It takes three (3) people to be weak …(words unclear)” is accurate and that Wilson speaks these words. The prosecution contends that this is a reference to the three men involved in the murder and the idea of being “weak” is Wilson ruminating about any of the three admitting their involvement.
Again, there is no discernible context. I do not see the logic in the prosecution suggestion as to the reference to three people to be weak. In any event, the language is too obscure and invites speculation; speculation that risks being informed by the case theory that Wilson was one of three involved in the murder.
The second passage in this section is also obscure.
I hit him, head high Tiffy, and that was from me, you hear me? …(words unclear)… four hundred and fifty grand (450,000) …(words unclear)…
The prosecution relies on this statement as being consistent with the evidence of Jordan Smith. However, there are a number of difficulties.
(i)Again, there is no discernible context. The statement appears to come out of the blue and there is no identification of “him”.
(ii)There is an intervention of background noise precisely at the time the word “hit” is transcribed which blurs the word. It cannot be heard clearly although the limited immediate context suggests this word.
(iii)I am not persuaded that the words “I [hit] him, head high, Tiffy, and that was from me…” were said by Wilson. The tone of voice is different and the pitch much lower.
(iv)Such context as is given, “… four hundred and fifty grand…” makes no sense at all on the prosecution case and suggests a completely different incident.
(v)Finally, and again, one must be careful (as with all the snippets relied on) not to allow the prosecution case theory of Wilson, as one of three men involved in the murder of Mr Todd, to influence what is heard and how it might be construed.
The next passage relied on by the prosecution occurs at about 11 minutes and 10 seconds into the recording.[106]
TW:…(words unclear)… see with ammonia, I see how it went. He’s like big, brother, I …(words unclear)… see it, Dave off, woof, straight over the cunt I said but are you going to get your best …(words unclear)… or then, a deal’s a deal, you understand, I looked at him and said full swing and like listen to me, blip, yep, Ollie’s down, bang, bolted, outside, I’ll be back, eh …(words unclear)…
[106] MFI-P77 at page 8.
After listening to this section many times, I am confident in hearing or making out only portions of this transcribed passage:
… see with ammonia, I see how it went … He’s like big, brother … Dave off … straight over the cunt … a deal’s a deal … I looked at him … blip, yep … outside
However, I will assume for present purposes the accuracy of the transcript. Even so, the language and syntax used remains obscure. It does suggest an incident involving Wilson, “Dave” (Russell) and Ollie (Mr Todd). On its own, it is suggestive of an involvement of Wilson in this incident but it does not give rise to a clear admission by Wilson as to the nature of the incident, that is, of involvement in the murder of Ollie.
The next passage relied on is at 12 minutes and two seconds into the recording.[107]
…(words unclear)… have a seat, I said Ollie …(words unclear)
[107] MFI-P77 at page 9.
Again, I am unable to be confident that this was said. However, I will accept the accuracy of the transcript for present purposes. The prosecution tries to link this to Mr Newton-Rodgers’ evidence that Wilson had said, some hours before the murder, that Russell had Mr Todd tied to a chair. I have canvassed this issue earlier. In my view, it is a red herring. The prosecution also contends that a stool seat, found thrown into the firepit at 30 Hurtle Street, Woods Point by Russell and/or Hutchinson during the clean up with its matching legs found in Russell’s Commodore, may have been involved in the murder. There is no forensic evidence in support of this; the prosecution’s contentions here amount to speculation.
The final passages relied on by the prosecution occurred between 12 minutes and 46 seconds and 13 minutes and 15 seconds into the recording.[108]
[108] MFI-P77 at pages 9-10.
TW:…(words unclear)… you understand …(words unclear)… Northern Territory, we’re black fellas, we gotta do black things, Ollie, white, dead, nothing you can do, you told me what to do …(words unclear)…
12:59 elapsed:
TW:I bashed his dog too
13:03Breath sounds, gasping, female sounding
13:05 elapsed:
TW:…(words unclear)… left him …(words unclear)…
13:11 elapsed:
TW:…(words unclear)… oh well Booms?
13:15 elapsed:
TW:…(words unclear)… part of your gift …(words unclear)… square …(words unclear)…
The prosecution relies on the first passage. I hear and agree with the transcript of this passage, except, I cannot make out “Ollie, white, dead”. However, I will adopt the transcript for present purposes. I also accept that the transcript correctly records “I bashed his dog too”. I also accept that the words “part of your gift” are spoken, although faintly.
The first passage (even with the reference to “Ollie”) does not contain a clear admission of culpability. The fact that Ollie is dead is well known and no doubt would have been a topic of discussion amongst the protagonists including Wilson, Mr Wollaston and Tiff Wilson. Ollie did have a dog called Gangster. There is no evidence of what, if anything, happened to Gangster at the time of the murder. Brevet Sergeant Douglas and Mr Weeding said they saw Gangster on the morning of 11 December 2019, but neither gave evidence as to his condition. The prosecution relies on the words “part of your gift” and “you told me what to do” and earlier “a deal’s a deal”[109] as all referring to Wilson acting against Mr Todd at the behest of Mr Wollaston and, perhaps, Tiff Wilson, Wilson’s sister. The words “part of your gift” clearly form part of a much bigger statement by Wilson, the content of which is not apparent. There is a context about which we know nothing. The linkage of the three statements, just referred to, each of them in obscure language, in my view invites speculation.
[109] MFI-P77 at page 8.
The prosecution makes the following overarching submissions concerning the listening device excerpts.[110]
The Track 16 admissions have to be considered in their proper context. From the earlier tracks, it is apparent that Uncle Terry is behaving in a happy and jovial manner around his sister Tiffany and the children.[111] He is cooperative with the home-detention officers who attends at the house.[112] He is animated when he shouts out the remark about someone having ‘eaten my cheese strips’![113] But by the time of Track 16, which runs for 30 minutes from 12:48am to 1:18am on 11 February 2020, Wilson's attitude and demeanour have plainly changed and deteriorated. As the evening has progressed, and given he has smoked at least a couple of meth pipes out in the shed,[114] it is apparent that he becomes irritated and stressed. That is perhaps how you would expect a person to behave who has just been released on home detention – especially if that person has on their conscience the trauma and guilt of having recently committed a murder. This characterisation of the context and content of the Track 16 admissions supports the evidence of Jordan Smith that Wilson was agitated and stressed when he made the admissions in the rear shed.
It is no mere coincidence that soon after the Track 16 recording and the Jordan Smith shed admissions, Wilson removes his home-detention monitor and absconds from his bail address at 80 Jarvis Avenue. In an agitated and distressed state, worried and openly ruminating about his involvement in the murder of Ollie Todd, it is no surprise that Wilson breaches his bail that same morning on 11 February 2020.
The admissions captured on Track 16 of the listening device recording, the evidence of Jordan Smith and Wilson's breach of home-detention bail have to be considered as a whole. They all occur on the same night at 80 Jarvis Avenue. Each piece of evidence has the tendency to support the cogency of the other piece of evidence. Considered as a whole, it is no coincidence that Jordan Smith has heard Wilson’s worried admissions in the rear shed on the same night that the listening device picks up his admissions from in or around the loungeroom of the house. And with the heavy weight of the murder on his conscience, it is no surprise or coincidence that Wilson breached his home-detention bail by around 4.20am on 11 February 2020.[115]
There is force to, although also speculation in, these submissions.
[110] Prosecution closing address at [139]-[141].
[111] Exhibit MFI P78 clip no. 1 and 2.
[112] Exhibit MFI P78 clip no. 3-6.
[113] Exhibit MFI P78 clip no. 8.
[114] TT 682.36.
[115] Affidavits of Susan Moss: Exhibit P26.
The Wilson defence makes the following overarching submissions concerning the listening device excerpts.[116]
[116] Written submissions on behalf of Wilson at [85]-[89].
The listening device material must also be considered in an overall sense. Wilson is clearly a drug dealer.[117] It is unfair, in our respectful submission, to pull out small portions of the material and retrospectively attempt to make them fit the prosecution narrative. This is conveniently demonstrated by the purported words ‘it takes three people to be weak’. We respectfully (and perhaps rhetorically) ask: what does that even mean? Could it be related to drug dealing? Could it be part of an innocent conversation, for example about bikes or rebirthing cars? There are too many unknowns.
[117] As admitted in his records of interview, as told by Hutchinson (see T892), and as can be inferred from some of the text messages (for example ‘goodness’), among other evidence.
Another general thing to consider about the listening device material, is the timing. The device was installed and Wilson released on home detention on 10 February 2020. By this stage, Wilson knew (through records of interview) that Ollie was deceased and SAPOL had located his body. Wilson had also spent some time in custody, having been released on 10 February 2020. Could Wilson have been recounting stories from his time in custody?
As to the overarching issue of attribution of words, we know that at 80 Jarvis Avenue at least Brett Wollaston, Tiffany Wilson, Terrence Wilson and Nathan[118] together with children and others were present.
With respect to all of the listening device material, the overriding questions are:
88.1is it Wilson?;
88.2what is said?;
88.3was Wilson saying the truth?; and
88.4is what was said an admission to murder of the deceased?
Following a proper consideration of the audio material, we submit that the portions simply cannot rise to the level of being admissions to the murder of the deceased by Wilson. There are individual issues with each of the portions, but each fall at one hurdle or another.
[118] See page 15, line 488 of track 16 transcript.
For the various reasons indicated to this point, I am not satisfied that any of the listening device excerpts, considered alone, constitute a reliable admission by Wilson of his involvement in Mr Todd’s murder. Taken together, that is, considered as a whole, they are a far more powerful indicator that Wilson was ruminating that night on Mr Todd’s death and the circumstances in which it had come about. Nevertheless, the multiple concerns outlined above, in particular, the difficulty in understanding all of the words spoken by Wilson, the lack of context for each statement, the obscurity or ambiguity of the discernible language used and the concern about the prosecution case theory fostering, if only subconsciously, a tendency to reason backwards to hearing and meaning, cause me to regard this material as falling short of a clear admission or admissions by Wilson of participation in the murder of Mr Todd.
Wilson – conclusion

As with Hutchinson, the evidence that Wilson entered into an agreement with Hutchinson and/or Russell to murder Mr Todd is scant, indeed almost negligible. The consciousness of guilt evidence and the evidence of admissions (Mr Smith and the listening device excerpts) are not sufficiently reliable or certain, for the reasons earlier given.
I find myself in the same position as with Hutchinson. The contact or opportunities for contact between Wilson and the other two in the early hours of the morning, Wilson’s proximity to 12 Tennyson Terrace at the critical time, the evidence of motive, Wilson’s conduct in fleeing from, changing his clothing and lying to the police and the evidence relied on by the prosecution as “admissions”, in the main, but together with the other matters relied on by the prosecution, give rise to a strong suspicion, even belief, that Wilson had a much greater knowledge of or even involvement in the murder of Mr Todd than has been contended for by his defence.
However, the difficulties with the hammer theory, the very narrow window of opportunity to be involved, the lack of any inculpatory forensic evidence, the negligible evidence of prior arrangement, the evidence of Hutchinson concerning Wilson’s absence and the indicators of spontaneity referred to during the Hutchinson discussion, together speak strongly of reasonable doubt. Having reviewed and considered as a whole all of the prosecution proofs, I am not satisfied beyond reasonable doubt that Wilson was party to an arrangement and I am not satisfied beyond reasonable doubt that Wilson was present at the time of the murder. Again, and taking the prosecution proofs at their highest, it cannot be said that Wilson’s guilt is the only rational inference available from the established circumstances.
It was for the above reasons that I, earlier, entered verdicts that Terrence Bradley John Wilson was not guilty of murder or manslaughter.