R v Simmons (No 7)

[2015] NSWSC 574

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Simmons (No 7) [2015] NSWSC 574
Hearing dates:	20-27 February,1-24 March (Pre-trial), 25-31 March, 1-30 April, 1-14 May 2015.
Date of orders:	20 May 2015
Decision date:	20 May 2015
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	1. I find the accused not guilty of the murder of Andrew Russell at Sofala between 1 and 20 June 2009. 2. On his plea of guilty and on the evidence adduced in the trial, I find the accused guilty of count 1 of assault occasioning actual bodily harm on 20-21 March 2009.
Catchwords:	CRIMINAL LAW – VERDICT – murder – trial by judge alone – missing person and cold case murder investigation – whether missing person deceased – identification of victim – admissions made to undercover police – whether admissions reliable – consciousness of guilt – circumstantial evidence – whether accused guilty or not guilty
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Evidence (Audio Visual Links) Act 1998 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Fox v Percy [2003] HCA 22; 214 CLR 118 R v Rose [2002] NSWCCA 455; 55 NSWLR 701 R v Simmons; R v Moore (No 2) [2015] NSWSC 143 R v Simmons; R v Moore (No 3) [2015] NSWSC 189 R v Simmons; R v Moore (No 4) [2015] NSWSC 259 R v Simmons (No 6) [2015] NSWSC 418 RELC v The Queen [2006] NSWCCA 383; 167 A Crim R 484
Texts Cited:	Australian Law Reform Commission Report, 102 Uniform Evidence Law (8 February 2006) Krug, The Relationship between Confidence and Accuracy (2007) 3(1) Applied Psychology in Criminal Justice 7 Loftus & Doyle, Eyewitness Testimony (1987) Odgers’ Uniform Evidence Law (11th Edition)
Category:	Principal judgment
Parties:	Crown Tony James Simmons (Accused)
Representation:	Counsel: P Barrett (Crown) P Young SC (Simmons) Solicitors: DPP (Crown) Mathew Lorkin Solicitor (Simmons)
File Number(s):	2013/15065
Publication restriction:	This judgment is redacted in accordance with non-publication orders made in R v Simmons (No 9) [2015] NSWSC 718. An un-redacted version is available to judicial officers, their staff and legal practitioners as a restricted judgment on the Judicial Information Research System (JIRS).

INTRODUCTION

1. HIS HONOUR: At around 8pm on 2 June 2009, Andrew Russell was “jaundiced, intoxicated and a bit all over the place”. Against the wishes and advice of Jamie Waring, his host and second cousin, Mr Russell left his temporary, part-time home at 3 Slim Street, West Bathurst intending to go to the nearby Dudley Hotel to drink some more. That was at about 8:30pm. What he did next is not known. A stranger may have seen him, around 6 km away, walking in the middle of an intersection on the Great Western Highway at Kelso shortly before 11pm. His family and friends have not seen or heard from him since.

2. Around 3 months earlier, on 20 March 2009, Mr Russell was assaulted by his then house mate Tony Simmons. That incident occurred in a house they were sharing at 9 Cripps Place, Kelso. It arose as a result of an incident between Mr Russell and Simmons’ then partner, Jodi Biles. Mr Russell ended up in hospital as a result of the assault. He had some injuries to his face. I will refer to this as “the March assault”. After the incident, the various occupants of the house in Cripps Place moved out. There is no evidence that Mr Russell ever returned there. Jamie Waring said that Mr Russell was too scared to go back.

3. Almost four years later, on 16 January 2013, Tony Simmons was arrested by police and charged with Mr Russell’s murder. He is now on trial and I must determine whether the evidence establishes his guilt.

4. Immediately before his arrest, Simmons made a detailed confession to the crime. His confession followed a sophisticated and cleverly executed undercover police operation by which Simmons was deceived over a period of four months. The learned Crown Prosecutor said in opening the trial that the case against Simmons depends on an acceptance that the statements he made to the undercover police officers in the final stages of the investigation are a true representation of his conduct towards Mr Russell. Simmons’ case is that the confession, and admissions that he made to undercover police officers in the previous week or so, were false.

5. A few days after Simmons was arrested, police charged another man, Kieran Moore with the murder. That charge was based on the things that Simmons had said during the undercover operation. The charge was later reduced to accessory after the fact to the murder committed by Simmons. Before the trial proper commenced, certain evidence against Moore was held to be inadmissible: R v Simmons & Moore (No 3) [2015] NSWSC 189. The Director of Public Prosecutions directed that there be no further proceedings against Moore. Moore was called as a witness in the prosecution case against Simmons.

6. On 19 March 2015 I made an order under s 132 of the Criminal Procedure Act 1986 (NSW) that the trial be conducted by judge alone, sitting without a jury: R v Simmons (No 4) [2015] NSWSC 259. The trial commenced on 25 March 2015. The Court heard evidence from 53 witnesses, including the accused, over 26 sitting days. This included 6 days in Bathurst when a number of local witnesses were called. Fourteen locations in Bathurst and around the nearby town of Sofala were visited as part of a view conducted on 1 April 2015. The balance of the trial was conducted in Sydney and Darlinghurst.

7. I heard counsel’s addresses on 6 and 8 May 2015. I then reserved my decision. I am now in a position to deliver my verdict. These are my reasons for that verdict. I will first set out the legal principles by which I am guided in reaching my verdict. I will then provide a narrative of the evidence including my findings as to which parts of the evidence I accept and which parts I do not accept. Finally I will articulate the reasons at the core of my decision and then I will announce the verdict.

Legal Principles

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

Presumption of innocence

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

Onus and standard of proof

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

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

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

Essential elements

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

1. That Mr Russell is in fact deceased.

2. That the accused did an intentional act that caused Mr Russell’s death.

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

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

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

Drawing inferences from direct evidence: circumstantial reasoning

16. I am able to, and will, draw inferences from the established evidence. However in doing so I must first be satisfied of the primary facts. I need not be satisfied of primary facts beyond reasonable doubt. There is no particular standard of proof to be applied to the individual items of evidence. Rather, it is the combination of facts or evidence that may lead me to infer the existence of facts that are not, or cannot, be proved by direct evidence.

17. Some intermediate facts may be so crucial to the process of reasoning that they are indispensable to the chain of reasoning leading to the inference of guilt. If there are such intermediate facts, they must be established beyond reasonable doubt. One intermediate fact that must be established beyond reasonable doubt is that Mr Russell is dead.

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

19. Mr Young SC in opening the case said that there was a reasonable explanation for the accused’s admissions to the undercover police officers apart from the conclusion he was telling the truth and is guilty of murder.

Consciousness of guilt

20. A particular species of circumstantial evidence upon which the prosecution relies is evidence of a consciousness of guilt. This is evidence that does not establish a direct admission but is relied upon as conduct that can only be explained by the fact that the accused knows that he is guilty.

21. The Crown put to the accused and submitted to the Court that certain things said by the accused were lies. These include statements he made in evidence as well as in a written statement to the police on 24 July 2009. However, the Crown does not rely on any of the alleged lies as evidence of a consciousness of guilt.

22. The Crown does rely on evidence that the accused attempted to influence a witness (Melissa O’Donoghue) as evidence of consciousness of guilt. The Crown also relies on five other things allegedly said by the accused as demonstrating an awareness on his part that he is guilty.

23. The evidence of consciousness of guilt is not capable of establishing guilt by itself. It is tendered as corroborative evidence. Before using any of this evidence as corroborating the guilt of Mr Simmons, I must be satisfied of two things. First, I must be satisfied that the thing in question (that is, the particular statement or the attempt to influence the witness) actually occurred. Secondly, I must be satisfied that the only explanation for the evidence (that is, the statement or the attempt to influence the witness) is that the accused was aware that he was guilty of the murder of Mr Russell.

24. Juries are often warned to be cautious in using evidence of consciousness of guilt because it is difficult to know how or why an innocent person may act in particular circumstances. Juries are urged to consider any other possible explanation for the statement or actions of the accused that are said to be motivated by a consciousness of guilt.

Identification

25. Two witnesses gave disputed evidence concerning sightings of Andrew Russell. The Crown relies on a sighting by Michael O’Neil shortly before 11pm on 2 June 2009 on the corner Littlebourne Street and the Sydney Road (Great Western Highway) at Kelso. This is significant because the location nominated by the accused (to undercover police) as the place that he and Kieran Moore picked up Mr Russell was a relatively short distance to the west (that is, on the bridge between Kelso and Bathurst). The defence relies on a sighting by Jennifer Coloton on 17 June 2009 on the same bridge. This is significant because it undermines the prosecution assertion or case theory that Mr Russell was murdered late on 2 June 2009.

26. When considering various parts of the evidence that rely on the personal identification of Mr Russell, I must remind myself that evidence of identification can be unreliable. I must consider the particular circumstances in which the observations were made, whether the deceased was known to the identifying witness, the circumstances of the observation (including the lighting conditions and length of observation) and other factors which I will set out more fully when I consider the evidence of the two witnesses.

27. The evidence is not “identification evidence” as defined in the dictionary to the Evidence Act 1995 (NSW). That definition captures evidence of “an assertion by a person to the effect that an accused was, or resembles (visually, aurally or otherwise) a person” who was seen at the scene of the crime or in a place connected to the crime. The evidence of Mr O’Neill and Ms Coloton concerns identification of the missing person, not the accused. For this reason, the provisions of the Evidence Act concerning identification evidence do not apply. Thus, there was no question as to the admissibility of the evidence pursuant to ss 114-115. Further, there is no requirement for a warning as to the reliability of the evidence under s 116 or s 165(1)(b).

28. However, the nature of the evidence is subject to the same issues of reliability that affect identification evidence as defined in the Evidence Act. It is “evidence of a kind that may be unreliable”: see the chapeau to s 165(1). There is no reason to distinguish between the evidence on the basis that Mr O’Neill’s evidence supports the Crown case while Ms Coloton’s evidence is potentially exculpatory and if a warning is to be given in relation to one witness, it should be given in relation to both: Australian Law Reform Commission Report, 102 Uniform Evidence Law (8 February 2006) at [13.44]-[13.45] referred to in Odgers’ Uniform Evidence Law (11th Edition) at [1.4.2900]; see also RELC v The Queen [2006] NSWCCA 383; 167 A Crim R 484 at [80]; cf R v Rose [2002] NSWCCA 455; 55 NSWLR 701 at [297] (Wood CJ at CL and Howie J), [343]-[348] (Smart J).

29. I will direct myself accordingly in relation to the evidence of both witnesses. I will identify the individual reasons for caution when I refer to the evidence of the two witnesses. For present purpose I direct myself that:

1. Evidence of identification may be unreliable.

2. The history of the law shows that witnesses commonly make mistakes when giving evidence of identification.

3. Even the most confident and honest witness can be mistaken when giving evidence of identification.

4. Studies have shown that there may be little, or no, correlation between the confidence with which a witness gives evidence of identification and the reliability and accuracy of their evidence. See, for example, Loftus & Doyle, Eyewitness Testimony (1987) 88-89; Krug, The Relationship between Confidence and Accuracy (2007) 3(1) Applied Psychology in Criminal Justice 7.

5. Features that can affect the reliability of identification evidence include:

1. The length of the observation.

2. Whether the witness knows the person that they purport to identify and how well they know them.

3. The lighting conditions.

4. The length of time between the observation and the identification.

30. These warnings do not mean that Identification evidence is unreliable. They merely require the evidence to be scrutinised and considered carefully.

31. Because of the dangers of identification, it is generally considered to be desirable for the witness to be provided with an array of photographs (or, if possible, group of suspects) depicting a selection of individuals of generally similar appearance. This avoids the possibility of the witness being influenced sub-consciously by suggestion. That is not always practicable and in the present case, the police were not (at the time) investigating a crime but attempting to locate a missing person.

Admissions

32. In considering the admissions made (or, in some cases, allegedly made) by the accused I must first consider whether I accept that the admission was in fact made. I must then consider whether or not the admission is reliable and/or true. In relation to the evidence of some of the witnesses who gave evidence of admissions, I must treat their evidence with caution for various reasons to which I will return when I discuss the evidence.

33. I remind myself that if the trial were being conducted with a jury, s 165(1)(b) may have required a warning that evidence of admissions may be unreliable. The parties agreed that I should take such a warning into account in relation to the disputed admissions. The basis of this consensus is that such evidence is not properly recorded and may be unreliable. It is not necessarily unreliable and the warning merely requires that the evidence be subject to close scrutiny before it is acted upon. Such evidence is easy to fabricate and may arise as a result of misinterpretation or misunderstanding of the accused’s words. Once given, evidence of oral admissions is difficult to refute. I must consider carefully the quality of the evidence of the admissions and the credibility of the witnesses who gave the evidence.

Out of court statements by witnesses

34. Many of the witness in this case were examined and cross-examined about statements that they had made in the past and about statements that other people (witnesses and non-witnesses) had made in the past. The basis upon which this evidence was tendered, and the way it can be used, varied from witness to witness and from statement to statement. In some instances the prior statement was put to the witness to remind them of matters that they may have forgotten (s 32 Evidence Act). In other instances, the prior statement was inconsistent with the evidence given in court and was used to undermine the credibility of the witness’ testimony (ss 38, 106 Evidence Act).

35. In the present trial, there were occasions when the witness accepted that they had made the previous statement and that the previous statement was true. In those instances, the prior statement was adopted as the evidence of the witness. On other occasions, the witness denied making the statement or could not remember all or part of the statement. In yet other instances, the witness accepted that they had made the previous statement (or something similar) but said that the previous statement was untrue.

36. Where the making of the previous statement was not admitted, or where the truth of the statement is denied, the evidence is generally not admissible to prove the fact contained in the out of court statement. It is hearsay (s 59 Evidence Act). However, there are a variety of exceptions to the hearsay rule (see ss 60, 65-66, 66A Evidence Act). Further, the hearsay rule does not apply to evidence of admissions (s 81 Evidence Act). Neither party relies on any out of court statement as evidence of the truth of what was said in that previous statement.

37. The most significant example was an “off the record” statement made by the former co-accused (Kieran Moore). This evidence came from Mr Moore himself and from his step father (Mr Fazio). When the evidence was introduced, the learned Crown Prosecutor said that he relied on the evidence as proof of the facts asserted in the out of court statement. Objection was taken to the statement being used in that way. In his closing address, the Crown said that he did not rely on the evidence for that purpose but only to prove that the matters asserted by Fazio were in fact said by Mr Moore. After closing addresses and in the course of discussions as to the appropriate legal principles, the parties agreed that it was appropriate to limit the use of the evidence under s 136 Evidence Act. Accordingly, I will not consider the evidence of what Mr Moore said in his “off the record” conversation with police as evidence that the contents of that statement are true. The use of the evidence is limited to two purposes. First, it can be used in support of the prosecution’s attack on Mr Moore’s credibility. Second, the prosecutor relies on the coincidence between what Moore said, what the accused told the undercover police and the location and timing of the possible sighting of Mr Russell by Mr O’Neill.

34. Where hearsay evidence is admitted (for a hearsay purpose, that is, to prove the truth of the hearsay statement) a jury is generally warned that hearsay evidence may be unreliable (s 165 Evidence Act). However, in the present case none of the out of court statements are relied on for a hearsay purpose. In relation to the second way in which the Crown seeks to use Mr Moore’s off the record statement, it is appropriate to approach the matter with a degree of caution, noting that there is no recording of what was said and that there are differences between the versions of the conversation provided by Mr Fazio and Mr Moore.

Witnesses and fact finding

39. I am entitled to accept part of a witness’ evidence and reject other parts. I have watched the witnesses closely and considered both what they say and their demeanour. I am conscious of the fact that “scientific research has cast doubt on the ability of Judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances”: Fox v Percy [2003] HCA 22; 214 CLR 118 at [31]. Where possible, I will look to objectively established facts, contemporary materials and the apparent logic of events.

Unreliable evidence and witnesses requiring a cautious approach

40. Evidence of certain classes of witnesses is known to be potentially unreliable. That does not mean that their evidence is unreliable in this case. It means only that before acting upon the evidence of such witnesses I must examine it closely and exercise caution.

41. Examples of such witnesses are those in relation to whom a warning under s 165 might be required if the case were being conducted with a jury. Evidence was given in this case by prison informers (Kypros Kypri and Luke Davis) and also by at least one witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings (Kieran Moore). There is some evidence of the involvement of three other witnesses (Jamie Waring, Kelly Burns and Jodi Biles) but that evidence is so slight and unreliable that it is inappropriate to treat their evidence with caution on this basis.

Prejudice, bad character and tendency

42. There is a great deal of evidence that demonstrates that Mr Simmons was a person of bad character both at the time Mr Russell’s disappearance (mid 2009) and at the time of the covert police investigation (September 2012-January 2013). This includes evidence that he assaulted Mr Russell in March 2009, misled police as to his involvement in the assault and allowed his partner to take the blame for the assault. There is also evidence that he used and trafficked in illegal drugs including methylamphetamine (“ice”) and was involved in crimes of dishonesty. During the course of the covert investigation he willingly took part in a wide variety of criminal activities staged by the undercover operatives. [REDACTED].

43. I must not use this evidence to reason that he is a person of bad character and therefore more likely to commit the offence. I must not reason that he is a person with a tendency to commit crime and therefore is more likely to have murdered Mr Russell. The evidence was admitted to place into proper context the admissions he made to the undercover police.

44. I can (and do) take the March assault into account as evidence of animosity between the accused and Mr Russell and as evidence of motive.

45. I am entitled to (and do) take into account evidence of his dishonesty and bad character in assessing his credibility as a witness.

46. Finally, I may take the evidence into account to rebut any suggestion of good character. For example, the accused claimed in cross-examination that he would not lie on oath for religious reasons.

THE EVIDENCE

47. I will now provide a summary of the evidence given by the witnesses called at the trial and the other factual material upon which my decision is based. The summary will largely be in the order in which the evidence was adduced. Where there were breaks in a witness’ evidence, I will summarise the evidence as a whole rather than in fragments. In the course of summarising the evidence, I will indicate some of my factual findings. This will include findings as to the credibility of the witnesses and inferences that may arise from their evidence. However, I will not indicate the ultimate findings of fact until I have considered all of the evidence.

48. The trial initially sat for two days in Sydney on Wednesday and Thursday 25-26 March 2015.

49. The first witness was Bruce Herbert. Mr Herbert is Mr Russell’s father. He described the health problems that Mr Russell had throughout his life. He was diagnosed with hepatitis at a young age and had another disease affecting his liver. In 2009 he was on a waiting list for a liver transplant. However he was never provided with the liver transplant, partially because he drank alcohol to excess and was never healthy enough to have the operation. Mr Russell had lived with his mother in Queensland before he moved back to Bathurst with his girlfriend in 2005. He lived at 9 Cripps Place, Bathurst until the March assault. His girlfriend and he split up around 18 months before he disappeared. The accused and his girlfriend Jodi Biles moved into the premises around 12 months after that.

50. Mr Herbert recalls going to the hospital in March 2009 and seeing the injuries to his son that had been caused in the assault. He said that his son lived with him and his partner for a time and then stayed for a short time with his cousin Jamie Waring. Waring lived in Slim Street, West Bathurst.

51. Mr Herbert gave evidence of his contact with Mr Russell on 2 June 2009. That is the date of Mr Herbert’s birthday. He attended a funeral for a local resident, Wayne (“Whacker” or “Whack”) Quinlan. His son was not at the funeral. His son attended his premises at about 3:30pm and was wearing new running shoes that he had recently bought. He thought those runners were red. His son arrived with a birthday present, drinking glasses with a Parramatta Eels motif. One of the glasses was broken because the present was dropped on concrete and Mr Russell indicated that he would return them to the place of purchase to try to get them replaced. He then left, saying that he might visit with Mr Waring and drink some bourbon, and then go to see if he could get the glasses replaced.

52. Mr Herbert did not see him again. Mr Herbert said that he reported his son missing to the police on “around 18 June 2009”. (Other evidence suggest the report was made on 20 June 2009.) His report followed his son’s failure to attend the Bathurst Local Court.

53. Mr Herbert said that his son did not own a car and “walked everywhere”. When asked about his son’s habit when receiving his pension, Mr Herbert said that he used to “blow it all” on his friends who used to use him for his money.

54. In cross-examination it was established that Mr Herbert’s memory was that his son left his house at around 4pm on 2 June 2009. He said that it was about 15 minutes to walk into town from his home. Mr Herbert said that Jamie Waring lived only a few blocks from him. He agreed that in a statement to the police he said that his son had a “drinking problem” and also that he and his son argued about his son’s drinking.

55. Suzanne Wallace is the domestic partner of Bruce Herbert and lived with him in June 2009. She confirmed much of Mr Herbert’s evidence although there were some minor and unimportant variations. For example she put the time of Mr Russell’s visit at between 12 and 1pm and said that he stayed for a couple hours. She also said that the new shoes that Mr Russell had just bought were black-and-white or black-and-white checks

56. She confirmed that when Mr Russell left he had intended to replace the glasses that had been broken and also said that he intended to go and have a beer with Jamie Waring. She said that he had also mentioned purchasing a new ‘phone that day. She said the next day she saw Casey Benger who told her that he hadn’t seen Mr Russell since the day before. She said that she saw some glasses similar to the ones that Mr Russell had given to Mr Herbert as a present at or near the Knickerbocker Hotel in Bathurst.

57. She became concerned for Mr Russell when he did not attend the Local Court on 15 June 2009. She told the Magistrate that he was probably in hospital. However when she checked Mr Russell was not at the hospital. She then checked whether he was “locked up” and discovered that he was not in the custody of the police. It was at that point, on about 20 June 2009, that she and Mr Herbert went to the Bathurst Police Station and reported Mr Russell missing.

58. Senior Constable Erin Lloyd gave evidence of her attendance at 9 Cripps Place Kelso on 20 March 2009. She was responding to a radio message that indicated that Andrew Russell had complained about his sister Kiara White refusing to leave the premises. She attended the premises and Mr Russell was asleep. In the radio message it was said that he appeared to be drunk. She spoke with Jodi Biles and Kiara White and left. She received a number of messages on 21 March 2009 in the early hours to return to the address. She did so and found that other police were already in attendance. She noticed that the accused was “agitated” and that he was shouting in the direction of the house. Mr Russell was responding by shouting back at him.

59. She noticed that Mr Russell had severe swelling and bleeding to his face and that Mr Simmons had no injuries apart from grazes to his knuckle that were explained as having been caused when he punched the house.

60. From what was said to police at that stage, she believed that Jodi Biles assaulted Mr Russell, but later a interview with Mr Russell suggested that Tony Simmons was the assailant.

61. She applied for an apprehended violence order on behalf of Mr Russell but the order eventually lapsed when she was unable to make contact with Mr Russell. On 10 April 2009 the accused declined to make a statement about the assault. She became aware that Mr Russell was reported missing on 21 June 2009 and made a number of enquiries in an attempt to locate him. She spoke with Mr Russell’s step-father who lived in Wee Waa as well as his stepmother and a number of other people who knew Mr Russell. None had heard from him since 2 June 2009.

62. She also made enquiries with a bank where Mr Russell was known to be a customer. She discovered that there had been a Centrelink payment into his bank account on 16 June 2009 but that this money had never been withdrawn. The manager of the bank placed an alert on the account to notify police if there was any action on the account. It seems that there has been no action on the account since 2 June 2009.

63. She was cross-examined in relation to a COPS event which she had prepared and which had been updated with each additional report. Her understanding was that Jodi Biles contacted Tony Simmons and asked him to come back to the house and he returned with a man called Jakob Peters. It was then that the physical altercation with Mr Russell occurred.

64. Detective Senior Constable Tammy Smyth interviewed Mr Russell at the Bathurst Hospital at 8:45am on 21 March 2009. She noticed a number of injuries to his face. Mr Russell said that is was the accused who had assaulted him. Mr Russell said that the assault had something to do with a break and enter incident that involved a fish tank. On information that there may be a visual recording of the incident on the accused’s telephone, she examined the telephone but found no footage. On 20 June 2009, Susan Wallace and Bruce Herbert attended the police station trying to locate Mr Russell. She checked the police system and ascertained that Mr Russell was not in police custody “anywhere”. She also contacted Bathurst Base Hospital and was told that Mr Russell had last been admitted in March 2009 (that is, at the time of the assault). She attempted to contact Mr Russell’s mother (Joanne Russell) in Queensland and his step-father (Greg Thomas) in Wee Waa. She had “negative results” from all of those inquiries.

65. In cross-examination DSC Smyth agreed that Mr Russell asserted that the assault was motivated by the fact that Mr Russell had refused to take the rap for a break and enter involving a stolen fish tank. She agreed that this was inconsistent with a previous police interview in which Mr Russell “had admitted being in possession of it [the fish tank] in circumstances where it may give rise to either a receiving or a goods in custody charge”. She agreed that she attended premises at 1 Whiteman Place Bathurst in response to a complaint by a Sharon Kelly and was told by the accused that he had an argument with Ms Kelly because “she wouldn’t sell him drugs”. She said that when she looked at the accused ‘phone, she saw a single image of Mr Russell. She had not forwarded that image to herself but agreed that the picture may have included the accused sitting next to Mr Russell. She agreed that Kelly Burns told her that she had not seen Mr Russell “since 3 June 2009”.

66. Detective Senior Constable MacLean was involved in the investigation into the disappearance of Mr Russell since June 2009. On 24 June 2009, he attended 9 Cripps Place Kelso (Mr Russell’s residence) and found nobody in residence. He noticed blood stains on the wall of a hallway that he believed related to the assault in March 2009. He noticed medications (including Prednisolone) and prescriptions in the name of Mr Russell. On 26 June 2009 he made inquires about the bank accounts of Mr Russell and then attended the residence of Kelly Burns in Slim Street Bathurst where he was provided with some clothes and prescriptions belonging to Mr Russell. He canvassed the area around Cripps Place and made inquiries with the local bus company (Selwoods). There were no bus bookings in the name of Andrew Russell on 2 June 2009. He executed a search warrant on 3 Slim Street Bathurst and returned to the unoccupied house at 9 Cripps Place. Forensic samples were taken and a coffee table was seized from the house at Slim Street. Enquiries with a local refuge showed that Jodie Wright had been collected on the evening of 2 June 2009. (That evidence was relevant to Ms Burns’ statement to DSC Smyth that she had last seen the deceased on 3 June 2009).

67. DSC MacLean made investigations into a white Hyundai Excel registered AK06VN in the name of Jodi Biles and took possession of car seats from a Ford Falcon once possessed by Tony Simmons. He also looked into a telephone box at the corner of Mitre and Lambert Streets. He attended the Dudley Hotel and ascertained that there had been two purchases of VB beer (Mr Russell’s preferred brand) on the night of 2 June 2009, one at 9:17pm and one at 10:23pm. Nobody at the hotel recognised a photograph of Mr Russell.

68. On 1 and 6 September 2011, DSC Maclean was involved in a covert operation whereby Jodi Biles entered Bloomfield Psychiatric Hospital wearing a listening device and spoke to Kieran Moore, the man alleged to be Mr Simmons’ accomplice. DSC Maclean also obtained a warrant enabling police to record telephone calls between Jodi Biles and the accused while the latter was in custody at Wellington gaol. He also interviewed the accused about an unrelated matter while he was in gaol. The accused said that he did not want to speak about the disappearance of Mr Russell at that stage. DSC Maclean also obtained various medical records relating to Mr Russell.

69. In cross-examination, Mr Maclean agreed that investigators had seized the coffee table at Slim Street because they had information that “Mr Russell’s head may have come in contact with that table through some misadventure at some stage at the house”. He thought that information may have been from an anonymous “Crime Stoppers” report.

70. Paula Morrison is currently serving a seven year sentence for an offence in the nature of kidnapping. She used to work in the car park near Coles in Bathurst working on the trolleys and, as such, she is well known. She knew the main players involved in the case and in particular knew both the accused and Mr Russell. She gave evidence of three specific events, all of which appear to be disputed.

71. The first incident was when she was speaking to Mr Russell around the corner from Coles and noticed the accused and some other people come up in a car. She thought it was a silver grey coloured car. The accused was in the passenger seat. Other people present were Jodie Wright, Chris Taylor, Jakob Peters and Jamie [Waring]. There was some argument and when the car pulled up (and, I infer, Mr Russell saw the accused), Mr Russell ran off. It seemed that she had given a different version to the police in terms of precisely where this happened. She said that she didn’t think that she attended Whack Quinlan’s funeral (which was 2 June 2009) and that she could not remember that day. The relevance of this is that there is no temporal point of reference to this incident. It seemed that the Crown expected the evidence to show that this incident occurred on 2 June 2009 but it did not do so.

72. The second incident involved a woman called Jodie Wright. Jodie told her “something about her knowledge of Andrew Russell’s disappearance”. The conversation started on a friendly basis but the witness became upset “after I heard a couple of the things she said”.

73. The third incident is potentially the most incriminating. However, I am unable to accept that the incident occurred at all. Ms Morrison said that she was followed in a car occupied by the accused and some other boys who she didn’t know. In cross-examination she said that Will (the accused’s brother) and Jamie Waring were in the car. She said “they told me to stop asking questions about Andrew Russell or I’d go missing, like Andrew Russell”. In evidence in chief she said that the accused uttered those words. However, in cross-examination, she said that it was “actually Jamie, it wasn’t Tony” who said that. Further, the cross-examination established that the words alleged do not appear at all in the interview she made with the police. DSC Maclean interviewed her in August 2009 in a police car. The interview was sound recorded. While she said something about the incident, on that version, the only words spoken were first that she asked the people in the car “what’s the problem?” whereupon Will (the accused’s younger brother) said “Just go Tony. Come on. Let’s go.” I do not accept her explanations for the absence of the version in the recorded interview. She seemed to be asserting that the police had somehow misinterpreted her words or failed to put the conversation in the statement. This explanation ignores the fact that this was not a statement where the witness tells the police something and the police then record it in writing. This was an interview that was recorded and then transcribed. As Mr Young attempted to point out to Ms Morrison, these were her words, not the words of the police.

74. I will give Ms Morrison’s evidence very little weight.

BATHURST SITTINGS

75. The Court sat in Bathurst from 30 March 2015 to 7 April 2015 and heard evidence from 24 local witnesses. There was also a view of some 14 locations in Bathurst and in the environs of Sofala.

76. Ian Wilson lived in the street that backed onto Cripps Place in Kelso and knew Mr Russell from seeing him walking around there. On Wednesday 22 July 2009, police attended Mr Wilson’s premises to ask about the disappearance of Andrew Russell. He said that he saw Mr Russell walking up through a paddock that connected the two streets. He said this was “a week or so beforehand” although the point of reference to this was unclear in his evidence in chief. In cross-examination, he said that the sighting was “a couple of days before” he heard that Andrew had gone missing. That would put it around 18 June 2009. He also said that it was a week or two before he made his statement on 22 July 2009 – he would put it “up to two weeks before police came to his house”. That would place the sighting in the first week of July.

75. If Mr Wilson’s evidence were accepted, it does some violence to the Crown case theory that the murder of Mr Russell occurred on 2 June 2009. However, his evidence was far from convincing and I do not accept it. I find that he was mistaken as to the date he last saw Mr Russell.

76. Peter Flanagan lived in Slim Street Bathurst and said that he last saw Andrew Russell at Bruce Herbert’s house on Bruce’s birthday. It was the same day as Whack Quinlan’s funeral, that is 2 June 2009. He said that Mr Russell said he was going into town to buy Mr Herbert a birthday present and some new joggers. His current joggers were a little the worse for wear (or “fucked” as Mr Flanagan put it). He conceded that his memory and evidence may have been affected by his state of intoxication and that he had told the police that he was drunk since the time he woke up.

77. Luisa Denaro went to school with the accused. She visited him and Jodi at Cripps Place with her partner John Carney and was told by the accused that he had hurt his hands in a fight. She was shown a photograph (by somebody other than the accused) on a mobile ‘phone depicting Mr Russell with two black eyes and was shown a bed which had blood stains on it. The case proceeded on the basis that this occurred sometime after the March assault. She was told that the motive for the assault was that Mr Russell was flirting with Ms Biles. Her evidence as to where this conversation occurred was challenged in cross-examination, there being some evidence suggesting that Ms Biles and the accused left the Cripps place house very soon after the incident.

78. Lisa Smith (nee Birmingham) knew the accused but did not know Andrew Russell. She gave evidence of a gathering of 7-8 people at the home of Sarah Hitchins at which the accused said to her “I didn’t kill him.” She said he admitted assaulting him and had a vague memory that this occurred in West Bathurst. She said this happened on “race weekend” which is to say in October 2009. By that stage rumours were circulating implicating the accused in Mr Russell’s disappearance. She also gave evidence of a person called Skye Laffin saying that she had heard that Mr Russell ended up in Ms Smith’s boot. She took this as a suggestion that she had assisted the accused in disposing of the body. She called the accused who denied any involvement. He said, “I only bashed him. I didn’t kill him. It’s all bullshit.” In cross-examination she said that the accused was “pretty pissed” at the gathering at Ms Hitchins’ and that he was big-noting himself. She also said that she was only 40% sure that she was told that the assault happened in West Bathurst. In re-examination Mrs Smith agreed that the form that the “big-noting” took was to brag about not killing Mr Russell but assaulting him.

79. Jennifer Coloton was a nurse at the Bathurst Base Hospital. She met Andrew Russell a number of times when he was being treated at the hospital. She first met him about a year before July 2009 when he was in the “transit lounge” which is the slang term for the discharge unit at the hospital. She saw him again two weeks later and told him that he should take better care of himself. She saw him again 6-8 weeks later and spoke to him. Mr Russell was a regular at the hospital. The last time she saw him at the hospital was in March 2009 when he was in a ward being treated for injuries caused by an assault.

80. 17 June 2009 was Ms Coloton’s birthday and she and a Mr Langford went to Bunnings. This involved traveling east on the Sydney Road from Bathurst towards Kelso. On a bridge known as the “White Bridge” she saw somebody who she believed at the time was Andrew Russell. Her level of certainty of that belief has changed over time.

81. A week or so after her birthday, work colleagues told her about media reports that Andrew Russell was missing. This caused her to approach the police. She told the police that she was “absolutely positive” that the person she saw was Mr Russell. She told her partner (Mr Langford) that she was 98% certain. However, her evidence in chief was couched in far less positive terms.

82. Given that her evidence of seeing Mr Russell on 17 June 2009 is contrary (and thus adverse) to the Crown case that Mr Russell was killed by the accused on the night of 2 June 2009, I granted leave to the Crown Prosecutor to cross-examine. She was reminded that there was a long period of time between her last certain observation of Mr Russell (in March) and the sighting on 17 June 2009. She agreed that she had told police that he was walking in a different manner to what she had previously seen. When she had seen him at hospital he “shuffled” with his head down and shoulder hunched. The man she saw on 17 June 2009 was walking upright and briskly. Her thought was that Andrew must have “turned a corner”. She agreed with the Crown Prosecutor that she based her identification on the length of the man’s hair and the appearance of his face. In retrospect, she conceded that she could not be positive that the man she saw on 17 June 2009 was Andrew Russell.

83. She was then cross-examined by Mr Young SC. She conceded that the observation was made in “bright daylight” and that, in spite of the differences concerning his gait and posture, she was “absolutely certain” that it was Mr Russell when she first spoke to police. She agreed that she knew that her evidence was contrary to other evidence in the investigation and that this “played on her mind”. How she became aware of this was not made clear.

Dangers of Ms Coloton’s identification evidence

86. In considering this evidence, I must remind myself about the dangers of visual identification evidence. Although this is not evidence tendered against the accused, it is still appropriate to remember that the history of the criminal law is littered with examples of eyewitnesses making mistakes when providing identification evidence. Even very confident and certain witnesses can be mistaken when it comes to making visual identification of other people. In this case, the witness herself acknowledges that she is no longer “absolutely positive” that the man she saw was Mr Russell. The following matters may affect the reliability of the identification:

1. She was in a car travelling at around 70km/h so that the duration of her observation must have been limited. There is no evidence that they stopped or slowed down to make the observation or to confirm the identification.

2. She and the man observed were both travelling in an easterly direction. Thus, for the most part, her observations were from behind. This reduced her opportunity to observe the man’s face.

3. The posture and gait of the man observed were inconsistent with Ms Coloton’s knowledge of the posture and gait of Mr Russell.

4. Ms Coloton had not seen Mr Russell for at least two and possibly three months.

87. Against that, I must also consider:

1. The lighting conditions were ideal for her observations.

2. Mr Russell was reasonably well known to the witness.

3. She immediately (thought that she) recognised Mr Russell and said something to her partner.

4. As soon as she heard that Mr Russell was missing, she contacted the police and made a statement. This was shortly after the purported identification and she said that she was absolutely positive that the man that she had seen was Mr Russell. She told her partner that she was 98% sure that it was him.

5. The observations as to Mr Russell’s gait may have been affected by his ill-health at the times she saw him. On the other hand, other witness also referred to his stoop and the fact that he walked with his head down. It is known that he was not well on 2 June 2009.

88. Like the evidence of Ian Wilson, Ms Coloton’s evidence cannot stand with the Crown’s theory that Mr Russell was murdered on 2 June 2009.

89. Brett Langford was Ms Coloton’s partner. He was present in the car when Ms Coloton believed that she saw Mr Russell on 17 June 2009. He confirmed her evidence that it was her birthday and they were travelling to Bunnings at Kelso to look at tiles. He stressed that Ms Coloton could only have seen the man “briefly” because they were travelling at 70km/h. However, he agreed that she said “I haven’t seen him for a while” meaning that he had not been into the hospital for a while. This confirmed Ms Coloton’s immediate recognition of Mr Russell as the man walking south on the Sydney Road on 17 June 2009. He said that the man was walking south on the footpath on the left hand side of the road and that the car he was driving was in lane 2 (of 4), that is the centre left lane heading east. He accepted that Ms Coloton said that she was “98% certain” that the man she had seen was Mr Russell.

90. Joanne Skinner lived in Cripps Road near the house where Mr Russell, the accused and Jodi Biles were living at the time of the assault in March 2009. She was woken one evening by noises coming from across the road at 9 Cripps Place. She had a clear view and saw Tony Simmons hitting Andrew. She said that after the first assault she did not see any injuries or blood on Mr Russell. She said that she spoke to Tony who was blind drunk and said he was just teaching Andrew how to fight. Later there was a more serious fight and she saw that Mr Russell had a swollen eye.

91. She claimed that after the police and ambulance came, Andrew Russell was playing up and only got into the ambulance after he was “tasered”. She said this more than once. There is no other evidence that Mr Russell was tasered during this incident and it would be a surprising eventuality given that he was the victim of the assault and had obvious injuries. I reject that part of Ms Skinner’s evidence and my rejection of that part makes it very difficult to place much reliance on anything she said.

92. Luke Salter was a resident of Sofala and a long term friend of the accused. He and the accused used to go trail bike riding together. One of the locations was near a waterhole on the Turon River about 2-3 km “upriver” from Sofala. Locals know it by the name of “Jackie Kirins”. It was so named for a former resident of the area. Mr Salter said that one occasion after they had been riding, the accused said that the area would be a good place “to get rid of someone” or “to bury a body”. In view of things that the accused later said to undercover police officers, this is a potentially important conversation. I will set out the relevant portion of Mr Salter’s evidence:

“Q. Now do you recall back at the time you spoke to Detective Hadley about 18 months before that do you recall motorbike riding with Tony Simmons?

A. Yeah, I know the one you're talking to. Again that's a reference to, it's like the statement that he made to me while I was out motorbike riding about it being a good place to bury a person.

Q. Tell us about that conversation?

A. We were out just riding, just doing the usual. Had a few beers and what not after we've had a ride and he just jokingly said it in like, I don't know whether he was serious or not, but being so many mine shafts and so secluded he said it's a good place to get rid of someone if you don't want to find anyone.

Q. This lady has to take down every word you say.

A. Yeah.

Q. So you've got to go a bit more slower.

A. A bit slower, yeah, sorry.

Q. Start again. That last sentence?

A. Yeah, he said, in reference like, after we had a few beers and what not, whether he was joking or what not, "That's a good place to rid of someone.”

Q. Were they his words?

A. Pretty much to the words, "A good place to bury a body" were, I think, was his exact words.

Q. What did you say?

A. I just laughed it off. Tony's always been a bit of a crap talker, if you know what I mean.

Q. He was a bit of a what?

A. A bullshit artist. You know, likes to exaggerate a small story beyond what it is or beyond its capabilities.

Q. Is that what you thought it was?

A. Yeah, just laughed it off.

Q. But it was something you remembered?

A. Oh, it was just, yeah. With everything that happened afterwards, it's just something that's kinda stuck in me head.”

93. In cross-examination it emerged that this conversation occurred many years before. When it was put to him, Mr Salter agreed that he had not been trail bike riding with the accused since 2005 or 2006. (The accused later gave evidence that he did not even know [Salter] until he “was 10 – about 2010 - 2009”.) In answer to a question from me Mr Salter said:

“Q. Mr Salter, are you saying that the remark that you say was made by Mr Simmons was made some years before you heard anything about the disappearance of Mr Russell?

A. I had I knew nothing about anyone missing at that time and it's just you know, it's just something that stuck in me head. You know, it's not something that you'd normally say.”

94. He gave descriptions of the topography of the area around the waterhole and detailed evidence about the number of mine shafts in the area and the nature of those mine shafts.

95. Casey Skinner is the daughter of Joanne Skinner. She lived in Kelso not far from her mother and the house where Mr Russell, the accused and Jodi Biles were living in March 2009. She claimed that the things she told police were her mother’s version of events. Contrary to her police statement she said that she had not seen a video depicting the assault of Mr Russell. She said that all she saw was a blur. Contrary to the statement, she said she was not present when Tony Simmons picked up a chest of drawers and that he did not (then) say that he had seen Andrew Russell and given him a “touch up”. Under force of the Crown’s cross-examination she said that there was a conversation when the chest of drawers were dropped off. She said that what the accused actually said was, if he saw Mr Russell in the future “he was going to give him another touch up”. As best as I could understand it, she said that this occurred sometime in mid-June.

96. If true, this evidence makes it unlikely that the accused had already killed Mr Russell because he would have not cause to threaten to assault him in the future. However, I propose to disregard Ms Skinner’s evidence altogether. She was an entirely unsatisfactory witness. She made a variety of excuses for what she said in her statement. She said she was very young and under the influence of her mother. She said her mother had tried to make her say that she had witnessed the assault. She said that she was anxious and nervous and that the police “twisted my words around”. She said she suffered from anxiety.

97. Rebecca Cassidy was another unhelpful witness. She claimed to have little or no memory of any relevant event or conversation and explained this by saying:

“At or around that time I was diagnosed with depression, so that's why my memory is vague at the moment.”

98. The Crown sought to revive the witness’ memory by providing her statement. She remained vague and her evidence was unhelpful.

99. Melissa O’Donoghue gave evidence of a conversation she had one night when she and Graeme Hinchcliffe were staying at the home of Jodi Biles and the accused. She said that there were other conversations where the accused said that the reason for the first fight was that Mr Russell wanted to learn how to fight. But other incidents were motivated “mainly over jealousy”. One incident occurred because Mr Russell had attacked Jodie and she was out the front of the house, very upset, when the accused came home. This made the accused angry. She gave evidence of one particular conversation which occurred on a day when accused and Graeme had played Xbox all day. They had then gone to get some beer and the accused was chopping up some cannabis. Jodi was still playing Xbox and the accused, the witness and Mr Hinchcliffe were sitting at a table. She described the conversation:

“A. To be honest, I don't exactly recall how we even got on that actual subject about Andrew, but yeah, well, we started talking about my partner was asking him what had happened before, 'cause we knew about Andrew having to be in hospital and everything on that previous fight and then the other fight had got brought up and Tony had said that they were drinking one night and Jamie was sleeping with two Jodies sorry, Kelly and Jodie, this other Jodie at the time. Tony was with his Jodi and Andrew was getting a bit carried away, drunk, getting a bit sleazy with the girls and that's what the big problem was about and Tony got a bit upset because he tried doing something to Jodie and so he started punching into him and he said that "I just kept hitting him a few times and then he dropped to the ground and he was crawling along", he said, his words were, "He was crawling along like a caterpillar and then he stopped moving" and then he said sorry, before that he said he had a table leg and he was hitting him and then, all of a sudden, he stopped moving and he thought maybe he was just out of it, like knocked out. And he said he tried kicking him and stuff and then he wasn't moving and that's when he realised like he wasn't even alive and then he said that he told the women and kids to get out of the house and he got rid of Andrew. He didn't tell me where he got rid of him and he didn't tell me who had helped him get rid of him.

Q. Did he say where that took place?

A. Well, I was under the impression, from what was being said that Jamie's, that's what they told me, that they went to Jamie's and Kelly's place.

Q. That is, Jamie Waring's place?

A. Yes.

Q. Is that right?

A. Yes.

Q. And Kelly?

A. And Kelly.”

100. Ms O’Donohue’s cross-examination was delayed by two days because of an incident that occurred upon her leaving the witness box on 30 March 2015 (this resulted in the trial being adjourned on 31 March while the incident was investigated by police) and the view on 1 April 2015. She resumed her evidence on 2 April. She gave further evidence in chief concerning two incidents in which she alleged that she was approached by a person (Rachel Hadley) and asked to modify, change or recant her evidence.

101. Ms O’Donohue said that after she gave evidence on 30 March 2015, Rachel Hadley approached her outside court:

“I - as she first walked up to me, I said, ‘I'm sorry about everything that's happened.’ She placed her arms around me and said, ‘It was okay’ and she stated ‘that Tony has been thinking. He said, ‘Why don't you just get up on the stand and say that it was all a lie?’ He was just saying it to, sort of, big note himself in a way in front of my partner, Graeme’, like giving himself a big reputation.”

102. Ms O’Donoghue said that Rachel Hadley had also spoken to her when they bumped into one another at Bathurst gaol when they were each visiting an inmate there. On that occasion, Ms Hadley suggested that Ms O’Donoghue “recant” and “just take back the statement”. She said that this happened about 8 months ago.

103. Ms O’Donoghue’s evidence of the admissions allegedly made by the accused did not stand up to Mr Young’s challenge in cross-examination. By the end of the cross-examination I was completely convinced that I could not act on her evidence. I found her demeanour to be theatrical and unconvincing. More importantly, it emerged that she had made a significant prior inconsistent statement and may have had a motive to lie to the police. I did not believe her evidence.

104. The first matter that raised a question mark over her credibility was the fact that, having heard this alleged confession to murder (or manslaughter) she did nothing for a number of weeks. She then made an anonymous call to Crime Stoppers, identifying herself only as Melissa.

105. That first call was made at around the time that the witness knew that there were warrants out for her and that she may be arrested for breaching parole. She said the timing was just a coincidence and that she had made the call “for my conscience” and “because I want that poor boy put to rest and I was scared for my safety. I don’t want to be involved in this.” She agreed that she had told Crime Stoppers that:

“Tony was boasting how he killed Andrew Russel by bashing him with the leg from a coffee table with the help of Jamie Waring.

When Tony realised Andrew was dead he stuffed him into the boot of his car. I asked Tony what the fight was about and he said it was over his girlfriend Jodi Biles.”

106. She agreed that she had not made a formal written statement until 12 May 2011. In that statement she said that she thought that the fight was about Jodi Biles but it could have been over Jodie Wright. She denied saying that to the police or at least could not remember it. She also denied knowing that the precise location of the incident and did not know that the address was in Slim Street Bathurst.

107. However, she was then cross-examined about a conversation she had with police at Bathurst Court House on 4 April 2010. The cross-examination was based on a note taken by a police officer at the time and there was no objection to the cross-examination. The note made specific reference to Slim Street. Ms O’Dononghue denied ever referring to that address.

108. There was then cross-examination on a note taken in the cells a month later when the witness was arrested on the warrants. Again, there was no objection or suggestion that counsel was not accurately putting what was recorded by the police officer. That note recorded her as saying:

“Simmons started saying that he was present at 3 Slim Street the night he went missing, referring to Andrew. Simmons went on to say that Russell started trying to seduce Jodie Wright which angered Jamie Waring. Waring proceeded to beat Russell with a coffee table. Simmons admitted that he assisted Waring in beating up Russell. This occurred on the lounge room floor."

109. That version of what the accused admitted is entirely different to the evidence the witness gave in her evidence in chief. She steadfastly denied having said it although she later claimed to have said “Jamie and Andrew had had issues over Andrew being sleazy with the girls, yes”.

110. The witness also denied that she was motivated by the fact that she was going to court for the breach of parole and thought she could obtain some benefit from the police. She denied that police had provided her “with any assistance in any way, shape or form around the time she made the statement in May 2011”. She was then shown a letter in which the same detective to whom she had made the statement (Detective MacLean) had sought to assist her with housing. At that point the witness split hairs:

“A. Not relocation. I didn't have a house. I was homeless with a young child. He was trying to get me into a refuge because I had nowhere to live.

Q. Did you forget that, did you, when I asked --

A. Yes, I did, to be honest.”

111. When the letter was marked for identification, and without having been asked a question, the witness volunteered:

“WITNESS: May I just say that I have never received anything from the police, anything from the department for this. I have only recently got a place and it's my third child. I've lived on the streets most of my life. So, no, the police have not helped me in any way. I have a support letter with me, which I forgot about, yes.”

112. The witness agreed that her partner, Graeme Hinchcliff, made a statement on 27 July 2011 (a couple of months after her statement) and that they had spoken to one another about the matter. She denied concocting the story and said “there must be a lot of people in this world that think alike then because, if we’ve all concocted the story, then we must all be psychic”. When asked who she was talking about, the only person she nominated was Mr Hinchcliff. In fact, as far as I can tell, there is no other evidence of a similar confession and all of the people supposedly present at the time of the events subject of the confession (Jamie Waring, Kelly Burns, Jodi Biles and Jodie Wright) have given no evidence that anything of the kind actually took place.

113. As I have said, I did not believe her evidence when she gave it. However, I must return to consider the confession that she alleges in the light of all of the other evidence in the case. In particular, her evidence received direct corroboration from her partner Graeme Hinchcliffe.

114. Graeme Hinchcliffe gave a similar account of the alleged admission attested to by Ms O’Donoghue. He said that while he believed that Jamie Waring was present, the accused did not say that Mr Waring assisted. In this respect there was some inconsistency in his version of the conversation and that of Ms O’Donoghue. He said that he had a “vague recollection” of being told that;

“… they’d wrapped him up in carpet or lino or something. May have. Don’t quote me. It was a long time ago.”

115. He initially agreed that he was present when Melissa made the call to Crime Stoppers. However, in cross-examination, the following exchange occurred:

“Q. What I want to suggest to you Mr Hinchcliffe is that what you've just told us and what you told the Crown and certainly what you told the police is not an accurate reflection of what this conversation was about at all, what do you say?

A. I'd like to know how you come to that conclusion.

Q. What I'm putting to you is that what you've done when you spoke with the police is simply to repeat what you heard Jodie saying over the phone?

A. How could I hear Jodie saying anything over the phone?

Q. She was talking to a police officer at Bathurst Police Station over the phone when you were there?

A. Was she?

Q. I beg your pardon. You told us about moving house and who you moved in with and you told us that you were aware that Melissa had made a call to the police, remember?

A. After we had moved out of Tony's house.

Q. And you see, you told the police that you were sitting next to her when she was on the phone?

A. I was.

Q. And you overheard what she said on the phone?

A. Yes.

Q. Well, I suggest to you what you've eventually told Detective McLean is simply to repeat some of what Melissa said to the police?

A. No, I I don't agree with what Tony's been charged with, whether he's innocent or guilty, I do not agree with the whole situation behind it all. Andrew was not a well man.

Q. Well, I am not asking you to make a speech.

A. Okay.

Q. I am putting to you that Tony didn't say these things—

A. Well, I am putting to you—

Q. —and you are simply backing up what Melissa told the police?

A. I'm putting to you I wouldn't be sitting here right now if he didn't say these things.”

116. Unlike his partner, Mr Hinchcliffe’s evidence was not completely destroyed by cross-examination. However, I found the exchange to which I have just referred unconvincing. Further, he did nothing for well over a year about the fact that he had heard what amounted to a confession to murder. He said that his memory was “shot” and agreed that he now knew that there was another incident involving an assault on Mr Russell which was caused by his treatment of Jodi Biles.

117. I will return to consider the evidence of this alleged admission in the light of all of the evidence in the case.

118. Michael O’Neill gave evidence of the last sighting of Andrew Russell before, on the prosecution case, he was picked up and murdered by the accused. Like the evidence of Ms Coloton, the evidence is in the nature of identification evidence and must be treated with some caution. There is no doubt in my mind that Mr O’Neill (like Ms Coloton) gave honest evidence. The question is whether the evidence is reliable. I remind myself of the general issues of reliability that surround evidence of identification.

119. Mr O’Neill was driving his son to work at around 10:45pm on 2 June 2009. He was travelling east on the Sydney Road (Great Western Highway) and was making a right hand turn into Littlebourne Street (the Oberon Road). He saw a man standing in the intersection, on the road, effectively not moving. He then drove his son to the Simplot factory and returned to the intersection. The man was still in the intersection. He was standing in the path of Mr O’Neill’s vehicle. Mr O’Neill told him to “Get off the road. It’s dangerous” and told him to go and sit on the grass verge. Mr O’Neill was 3 metres from the man and they were looking directly at one another for around 10 seconds. At one stage Mr O’Neill agreed that it was at around 10:30pm but it may have been a little later than that (based on the time of a 000 call). Although it was night time and dark, Mr O’Neil said the street lighting made the lighting conditions “quite good”. He could see the man “very well”. The man moved in the direction of the grass verge but Mr O’Neill did not think that he got that far. In other words, he was still on the roadway, in the intersection. Mr O’Neill made his left hand turn, pulled over and called “000”. There is a record that the call was made shortly before 11:56pm. He then left the area and saw a police car heading in the direction of the intersection.

120. Mr O’Neill was contacted by the police at “some point in time after that”. He said that he made a statement on 4 August 2009 but was shown a photograph by police about two to three weeks after the sighting. Evidence given by Detective Fawkner later in the trial established that Mr O’Neil was shown the photograph on 25 June 2009.

121. In cross-examination, Mr O’Neill said that when he was shown the photograph he was “very confident” that it depicted the person he had seen at the intersection. He agreed that his statement said that he was “quite confident”. He thought that the distinction between that state of certainty and “very confident” was a matter of “semantics”. (An investigators note tendered in evidence toward the end of the prosecution case said that he told Senior Constable Gunning that he was “fairly certain” that the photograph depicted the man he saw on 2 June 2009.)

122. He said that there had been some discussion between himself and his son at the time when he first saw the man in the intersection (“what’s this guy doing” or “he going to get hit there”) but was not aware whether his son was ever approached by police to make a statement or identification. He agreed that he had been shown photographs of a man inside a retail store and that he could not identify these as being the man in the intersection. However, he said that he had seen those photographs previously in the media. Those photographs were the still images taken form the CCTV at Chip-N-Dales newsagency, later tendered as exhibit C.

Dangers of identification evidence of Mr O’Brien

123. I remind myself of the dangers that attach to identification evidence. In relation to Mr O’Brien I note the following matters to which I must pay particular regard:

1. While Mr O’Brien was a particularly impressive witness, there is no established correlation between the confidence with which a witness purports to identify somebody and the accuracy and reliability of that identification.

2. Mr O’Brien was identifying a stranger.

3. Mr O’Brien was driving at the time of the first observation and the period of the observation must have been very short.

4. The observation took place at night.

5. There was a period of around 3 weeks between the time of the observation (2 June 2009) and the time of the identification of the photograph (later shown to be 25 June 2009).

6. The “identification” was of a single photograph. He was not shown an array of photographs requiring Mr O’Brien to select or distinguish. I should stress that this is not meant to be a criticism of the police. There was no legal requirement that he been shown an array and the process was part of a missing person investigation.

7. Mr O’Neill had seen the still images from the CCTV at Chip’N’Dales in the media before making the identification but said that those had insufficient detail for him to make an identification.

124. Against that:

1. Mr O’Brien was a very impressive witness.

2. He was focussed on the man from a relatively short distance (about 3 metres).

3. The street lighting was good.

4. He was sufficiently concerned to speak directly to the man and to call 000. This suggests that he was focussed and concentrating during the period of the observation.

5. The observation was not “fleeting”. He saw him for a short period as he was driving to his son’s work and for a longer period (around 10 seconds), during which time he was looking straight at him, on his return.

125. Jamie Waring was a cousin of Andrew Russell’s father. He became friends with Andrew and his sister (Kiara White) when they were growing up. Mr Waring described Mr Russell’s liver condition and his alcohol problem. Mr Russell used to consult Mr Waring about problems he was having. He described Mr Russell coming to his place with blood on his jacket after he was released from hospital following the March assault. After that, Mr Russell stayed between his father’s house and Mr Waring’s house at 3 Slim Street Bathurst. Mr Russell was worried about being out at Kelso by himself after the incident in March.

126. On 2 June 2009 Mr Russell was at 3 Slim Street. Also present were Mr Waring, Kelly Burns, Jodie Wright and Mr Waring’s children. All but Mr Waring and one of the children, who was sick, went into town. (The fact that Mr Waring did not go into town brings into question Paula Morrison’s evidence that he was present during the first incident she described.) Mr Russell intended to buy his father a birthday present and a new pair of shoes for himself. When Mr Russell returned he had bought some shoes and then left to visit his father. He returned about 8 o’clock and Mr Waring described him as “Major shit faced, yeah … too drunk for my liking.” Mr Waring was worried about the amount Andrew had drunk “because of his liver and what not, like you know what I mean”.

127. Mr Waring wanted Andrew Russell to stay at home and refused his invitation to go to the Dudley Hotel for a drink. Mr Russell left. Mr Waring believed he was going to the Dudley Hotel and hoped that he would return to 3 Slim Street. The Dudley Hotel is a short distance (1.2 km) from 3 Slim Street. Mr Russell did not return and Mr Waring has not seen him since. In the weeks before 2 June 2009 the pair had seen one another regularly.

128. At the beginning of his evidence, Waring denied having anything to do with Mr Russell’s disappearance or death. This denial was elicited in the context of evidence from Melissa O’Donoghue and Graeme Hinchcliffe that the accused told them that Waring was present or involved in the assault of Mr Russell with a chair leg that led to his death.

129. In cross-examination, Mr Waring agreed that in June 2009 he was in a relationship with both Kelly Burns and Jodie Wright. He confirmed that he had no contact with the accused around the period of 2-5 June 2009. He was unaware whether Mr Russell had “any feelings towards Jodie Wright” but agreed that Mr Russell was “worried that I was seeing Jodie when I should be with Kelly, you know what I mean like”. He denied that he had gone away or “gone AWOL” on the 3rd and 4th June 2009. However, he stayed at 3 Slim Street (Kelly’s place) and avoided Jodie. Kelly told Jodie that he was not there. (As I understand it, this cross-examination arose out of evidence that was expected to come from Jodie Wright that Mr Waring had gone missing in the days after 2 June 2009. As it turned out, Jodie Wright did not attend to give evidence.)

130. On 2 June 2009 he had consumed enough Bourbon to make him “feel comfortable”. This was a “ten pack” of “Woodstock”. There was no evidence as to exactly how much alcohol this entailed although I suspect it would be enough to make most people quite drunk. Mr Waring explained that he was a seasoned drinker (my words).

131. He gave evidence about being placed in the same cell as the accused while at Wellington Gaol. He agreed that he did not believe that this was a coincidence and that it was possible the cell was being monitored by listening device. It was in that context that he said to the accused that he would deal with the accused if he found out that the accused had anything to do with Mr Russell’s disappearance. He was asked whether the accused said anything to the effect that the accused was being blamed for Mr Russell’s disappearance and that if he found out that Mr Waring was involved he would belt him. He replied:

“No, he said to me, like, he basically denied having to do anything with it, you know what I mean, like. And him belt me, well, yeah, I'd like to see that, you know what I mean, but that's a different story. You know what I mean, like, yeah.”

132. Kelly Burns lived at 3 Slim Street with Mr Waring and confirmed much of his evidence. There were some minor inconsistencies in the timing of events on 2 June 2009 but generally they presented a consistent account of Mr Russell’s movements that day. She said that she went into town with Jodie Wright, Mr Russell and her daughter and met up with Casey Benger. They looked in several shops for a pair of shoes. Eventually he bought a pair from Payless Shoes in the new Woolworths plaza. The shoes were like those depicted in Ex D. They went to Chip-N-Dales newsagency where Andrew bought some Parramatta Eels drinking glasses for his father’s birthday. Ms Burns agreed that Ex C showed Andrew in the newsagency. They went to the Knickerbocker Hotel for a drink. At that point they separated and Mr Russell bought some VB twist tops and headed to visit his father.

133. Andrew arrived back at Slim Street at around 7pm. He was drunk and jaundiced. He was there for about 1 ½ - 2 hours and then headed off for The Dudley Hotel. When he left, “there was me, Jamie, Jodie Wright and my daughter and two sons” at 3 Slim Street. At around 9:30pm Jamie walked Jodie Wright to the corner shops where she was to be picked up and taken to a refuge where she was living. Jamie Waring stayed at the house for the next four days and Jodie did not come around during that time. Jodie tried to telephone but Ms Burns “wouldn’t let him answer the ‘phone”.

134. In cross-examination Ms Burns agreed that Andrew was “jaundiced and very alcoholic”, well and truly affected by alcohol and “a bit all over the place”. He had a Velcro wallet that Jamie had given him. She said he had got around $600 in benefits that day. She said that medication found at her home belonged to Andrew Russell and that he had picked up a script that day “for all his medications”.

135. She was asked why she did not report Mr Russell missing if she had expected him to return and she said:

“A. Because I didn't realise he had gone missing. I figured by the next day I thought he'd gone to his dad's place. And then the day after that someone had told me that they'd seen him and that he was fine, and Jodie Wright told me that she'd seen him out at Kelso and that he was okay and that he was heading to Queensland to go and live with his mother. And then all of a sudden everyone else started stories and told me that he was fine. And then when Sue rang me four days later saying that she hadn't seen him and hadn't seen him for four days, that's when I worried. I do apologise for that.

Q. But it was only four days before she rang you, was it?

A. Four days later after 2 June so it would have been like 6 June she rang me to ask me if I'd seen him.”

136. In answer to questions from me she said that the conversation with Jodie Wright where Ms Wright said that Andrew was in Kelso occurred on 3 June 2009 in Kings Parade. She said that she had never heard of Paula Morrison.

137. Kiara White is the daughter of Susan Wallace and the step-sister of Andrew Russell. She gave an account of the March assault that bore almost no resemblance to a version that she apparently provided to the police on the night of the incident. That version was recorded in a police note book and signed by Ms White. The original version did not refer to the accused hitting Mr Russell at all. The version she gave in Court made no reference to Mr Russell’s conduct toward Jodi Biles or his aggressive behaviour on the night. Her evidence in chief was as follows:

“Q. What was happening?

A. They were just full on arguing. They were - Tony was punching into Andrew. It was just - I don’t know how to explain it.

Q. Did you see any injuries to Andrew at that stage?

429. Secondly, the gap of two hours between 12:21am (when he attempted to call Jakob Peters) and 2:26am (when he downloaded data using his telephone) provides insufficient time to do the things that he described to the undercover officers. Those things included abducting Mr Russell, stealing a car, driving to Sofala, crossing the river, driving or walking to the top of one of the cliffs at (or near) Wallaby Rocks, pushing Mr Russell to his death, climbing down and retrieving the body, dragging it up the cliff and back to the car, driving to the paddock on the Red Hill Road, carrying the body to the site of the mine shaft, dumping Mr Russell’s body into the mine shaft and then returning to Bathurst. That could not have been done in two or three hours. Based on the view, the round trip from Bathurst (or Kelso) to Sofala by car takes at least 1 hour.

430. Assuming that there was no Optus coverage in or near Sofala in 2009 (a matter upon which there is no clear evidence but upon which the parties seem to agree), the records suggest that the accused was in or near Bathurst at 12:21am and at 3:17am. That period of slightly under three hours makes it impossible to accept that the actions described to the undercover officers are a true reflection of what happened. The temporal window of opportunity is further narrowed when it is seen that the mobile telephone accessed the internet (“DOWNLOAD”, “INTERNETBROWSING”) at 12:23am and 2:26am. He could not have accessed the internet through his mobile telephone if he was at or near Sofala. That reduces the time available to just over two hours.

431. Based on the telephone records alone, I am satisfied that the accused did not do all of the things that he described to undercover police. Substantial parts of his confession are untrue.

Shoes, clothing and wallet

435. There was a good deal of evidence that Mr Russell bought new shoes on 2 June 2009. Two of the witnesses were with him when he bought them. Casey Benger said that the new shoes “were a white skate jogger”. Kelly Burns said that “I picked the shoes for him ‘cause I know the shoes. I picked them.” She also described them as “skate shoes”. She was shown some photographs (Exhibit D) and said that they depicted the “shoes he had on him.” Exhibit D depicts white sneakers or skate shoes. There is a slight amount of red on the brand name and a pattern on the heel but they are properly described as white shoes. During the long conversation on 15 January 2013, the accused was asked by undercover police what Mr Russell was wearing and he said:

“Tell you the truth I don’t remember, I think it was like a reddy coloured jacket and a pair of jeans and a black pair of shoes. I know what sort of shoes he had ‘cause I fuckin’ dropped the cunts when I was up walking … dropped the cunts.”

436. Mr Waring said Mr Russell was wearing clothing he had given him. He said that this was jeans and a red, black and white Nike jacket. He thought that Mr Russell was wearing a baseball cap. CCTV images from Chip’N’Dales provides a limited view of the clothing that Mr Russell was wearing earlier in the day. The jacket he is wearing has a small patch of red on the shoulder but I would not describe it as a “reddy coloured jacket”. According to the investigator’s note Michael O’Neill told police that the man he saw at the corner of Littleborne Street and the Sydney Road was wearing a “light blue? tracksuit”.

437. On the whole, the accused’s description of the clothing worn by Mr Russell is inconsistent with the evidence of what it seems that he was actually wearing. The only item of which the accused claimed to be certain (the black shoes) was directly contradictory of the one item that Mr Russell was almost certainly wearing (his new white skate shoes). The evidence of jeans is more or less consistent but the evidence on both sides of the equation is uncertain. The evidence of the jacket is, again, not certain and only partially consistent.

438. Another minor detail is that Mr Russell had a wallet with him when he was last seen by Ms Burns. She described it as “a velcro wallet that Jamie had given him”. The accused told the UCO that he had searched Mr Russell for a wallet (to rob him) but that he had nothing on him.

Cars

439. The accused told undercover police that he and Kieran Moore stole a car, a green VT Holden, and that they transported Mr Russell to Wallaby Rock near Sofala and pushed him off. They later “torched” this car along with their clothing. Detective Fawkner gave evidence that there were no relevant reports of any stolen vehicle and no evidence of any car being burnt out at that time. I find that the accused lied to the UCOs about stealing a car and later burning it.

440. The evidence of Corri Maguire contradicts any suggestion (in the version provided to Ms Biles for example) that the accused was driving the white Hyundai Excel when Mr Russell was abducted. In one sense, the Crown relies on the evidence of Corri Maguire in that (at least in one of his statements to police) he said that he drove the accused to Kelso late on the evening of 2 June 2009. This puts the accused in the correct location. However, he said that he drove back into Bathurst in the White Excel and that the car remained there all night. If this is accepted, the accused could not have picked up Mr Russell in the White Excel.

Where the accused had been earlier in the day

441. There was some evidence that seemed to link a trip to the Sydney Casino and a sixteen year old girl’s birthday party with the night that Mr Russell disappeared. However, this evidence was extremely vague and uncertain. For example, the precise date of the birthday party was never established and Mr Peters could not say (or would not say) whether the two events were the same. Both Jakob Peters and the accused asserted that, whenever the trip to the Casino occurred, they stayed overnight in Sydney and returned during the day.

442. In the admissions that the accused made to the UCO on 16 December 2013 the accused said that he was driving back from Sydney when he picked up the deceased. He said that he and Keiran Moore had been to Sydney to “get on” (i.e. to purchase some drugs namely “two pound of pot and an ounce of gas”). He said that they had been in Campbelltown. As I have said, the telephone cell tower records contradict the accused’s statements as to where he was earlier in the day. Nowhere in those records is there any occasion where the accused’s mobile telephone connected with a cell tower in Sydney or Campbelltown. The records show connections in and around Bathurst.

The March assault

443. The accused told the undercover police various things about the March assault. Some of those things were true. For example, it is true that there was such an assault, that the accused allowed his partner to take the blame for the assault and that the charges (or AVO) were dismissed upon the non-attendance of Mr Russell.

444. However, I am satisfied that the accused exaggerated the severity and seriousness of the assault. On 9 January 2013 the accused told the UCO that he had put Mr Russell in hospital for “a couple of weeks”. He said that he “broke both of his eye sockets, his jaw, his nose, his arm, all his ribs, his ankle”. On 16 January 2013 he said that Mr Russell spent “6 weeks in intensive care, and shit. And I broke both his eye sockets, his nose, his ankle, all of his ribs, his arm. Fractured his jaw”. None of those things was true. The hospital records showed that there were soft tissue injuries to the face and legs. There were no fractures. The accused did not break both of Mr Russell’s eye sockets. He did not break his nose or his ribs or his arm.

445. Further, Mr Russell was admitted to hospital on 21 March 2009. He was treated in the emergency department. There is nothing to suggest that he was in intensive care at any stage and no injuries that would have required intensive care. He was not in intensive care for six weeks. The evidence of Detective Fawkner is that the hospital records suggest that Mr Russell signed himself out of hospital on 22 and/or 23 March 2009. That is an admission of 2-3 days. The accused’s admission that he put Mr Russell in hospital for a couple of weeks was an exaggeration. The statement that Mr Russell was in hospital for six weeks was a gross exaggeration.

446. I find that the accused grossly exaggerated the details of a March assault in order to ingratiate himself with the criminal gang by demonstrating his capacity to use violence and force.

The location of the disposal of the body

447. The accused was quite specific as to where he and Kieran Moore disposed of Mr Russell’s body. He took two of the UCOs to a particular location some distance from Sofala on the Red Hill Road adjacent to the Tobins Oaky Creek. He identified the location by reference to some sheds and other landmarks. He was asked a number of times whether he was 100% certain of the location and he said that he was sure. At one stage he said he was “110%” certain.

448. Having identified the paddock, the accused showed the police officers (not knowing that they were police officers) a tree under which he said there was a mine shaft into which Mr Russell’s body was thrown. The tree was on the top of a fairly steep area above the bank of the creek. At the time (that is, on 15 January 2013) the spot was overgrown with blackberries. The accused told police that the blackberries were not there when he dumped the body. He made no comment about the steepness of the bank of the creek.

449. The UCOs were unable to locate anything resembling a mine shaft in the area indicated by the accused. A couple of days later an intensive search of the area was undertaken. The blackberry bushes were cleared and a number of police officers and emergency service workers conducted a line search. The search was conducted over a number of days and focused on the area nominated by the accused. Neither a mineshaft nor any human remains were located.

450. The Crown submits that there is an explanation for this. It is said that the creek and the Turon River into which it flows are subject to flooding and that the area indicated by the accused showed signs of water erosion. Some of the police officers who had local connections gave evidence of this and water erosion was apparent on the view of the scene. On two or three occasions on 15 January 2013, the accused spoke of the erosion and flooding in the area around Sofala when he was indicating the two sites he said were relevant to the murder of Mr Russell. However, the evidence was not specific as to the timing of any particular floods and there was no evidence of what the relevant portion of the paddock looked like in 2009. None of the previous owners were asked by police what the paddock was like at the relevant time and the evidence of water flows in the Turon River at Sofala does not establish flooding in the relevant part of the Tobins Oaky Creek between June 2009 and January 2013.

451. There are at least two other possible explanations for the failure to find a mine shaft or human remains in the area identified by the accused. First, he could have deliberately taken the UCOs to the wrong spot because he did not want anybody (including fellow criminals) to know where the remains had been disposed of. Secondly, the accused could have made a mistake as to the location. It is true that the area had some quite distinctive features and is no doubt (technically) unique. For example, there is a small bridge immediately before the field, there are sheds to which the accused pointed when the UCOs asked him how he was sure that they were in the correct location and the willow tree and fence line bears a particular relationship to the creek. However, it is a wild, large and somewhat repetitive landscape. Areas of the creek and paddocks could easily be mistaken for one another. Further, the accused was operating from a memory of events 3-4 years earlier in circumstances where his observations occurred in the middle of the night and in a situation of some panic.

452. Considering all of those things, the failure of the police to locate a body or a mine shaft in the area nominated by the accused does not disprove the prosecution case that the accused disposed of Mr Russell’s body in the vicinity of Sofala. In any event, that is not a matter that the Crown must prove beyond reasonable doubt. However, it is a fact that undermines the reliability of the admissions that the accused made.

The topography of and accessibility to Wallaby Rock

453. One of the issues raised on behalf of the accused concerned the feasibility of whether the things described by the accused in his admissions to the UCOs could have occurred at all. This issue turns upon the nature of the terrain around Wallaby Rock and upon the descriptions of the things that the accused said happened there. When the UCO and the accused attempted to cross the Turon River on a rough track just on the Sofala side of Wallaby Rock, their car became stuck on the rocks there. They could not get the car out under its own steam and a bystander with a four wheel drive and a rope assisted them to pull the car out. The accused told the UCOs that he, Mr Moore and Mr Russell had crossed the river at that point. They were in a stolen Holden Commodore VT (or perhaps, one might speculate, Mr Moore’s Holden Commodore VT).

454. When the Court attended on a view of the area, Sgt Grabham was asked whether an ordinary car (as opposed to a four wheel drive) could cross the river at that point. He was first asked this by Mr Young when we were standing in front of Wallaby Rocks itself. He said “I wouldn’t take a two-wheel drive across the river, personally.” He said that this river crossing was the only way to access the “ridge road”, that is the road that ascends part-way up the rear side of Wallaby Rocks. While it is far from certain, the most likely interpretation of what the accused said is that it was this route that he and Moore took when taking Mr Russell to the top of the cliff. The Court then moved to the area of the river crossing itself. It is a short walk from the water hole. Sgt Grabham was asked by the Crown Prosecutor “That crossing at the moment you could cross with a motor car without a four wheel drive?” Mr Grabham said “I assume so. You can try it. It looks – there’s not much water flowing now.”

455. It is no doubt possible that the river crossing could be made without a four wheel drive. However, the preponderance of evidence is that a four wheel drive is at least advisable and in some conditions necessary.

456. The second part of this “feasibility” argument concerned access to the cliffs. I have noted the cross-examination of Detective Fawkner on the issue of how close to the cliff’s edge one can drive in a car. Three things emerged. First, the higher part of the cliff cannot be accessed by vehicle and it took Detective Grabham “nearly an hour” to walk to the top. It is extremely unlikely that the accused and Mr Moore managed to get Mr Russell to the top of the cliff. The photographic evidence does not do justice to the scale of the higher cliff. Second, Detective Fawkner did not agree with the proposition that the lower cliff (which is still quite high and sheer) could not be accessed by vehicle. He indicated a point on the photograph where the ridge road came to a point quite close to the edge. He said it was about ten steps and denied the proposition that it was necessary to scale the ridge line. I accept his evidence in the absence of any evidence contradicting it. Third, I was not taken to the other side of the Turon River on the view. It seemed that the significance of this matter became clearer to the parties after the view was conducted and in the course of the UCO’s evidence. In the circumstances, attempting to make any conclusive determination as to the feasibility of what the accused described is little more than speculation.

457. The final matter raised in this area was the implausibility of the accused’s account that he and Mr Moore climbed down and retrieved Mr Russell’s body. If - and it is a big “if” - the area was the front side of Wallaby Rock that is depicted in the photographic exhibits and which was visible on the Court’s view, that suggestion is almost completely implausible. The rock face is sheer and the likelihood is that the body would have ended up in the water hole. However, the evidence is in such a state that I cannot find that it was the front side of the Wallaby Rock that the accused described. It seems, based on the searches of the area, that the investigating police may have felt that this is what he was describing. However, after the car was extracted from the river crossing and as the accused and the UCO left the area on 15 January 2013 the accused was asked if he could see the spot where Mr Russell was pushed from where they were and he said no. It is impossible to make too much of that answer because there is no certain evidence as to where they were and what they were looking at, but it did seem likely that they were looking up at the front of the Wallaby Rock from something like the location that we attended on the view.

458. My finding, based on what is known of the geography and access roads, is that the accused’s description of taking Mr Russell to the top of a cliff and pushing over the edge is implausible but it is not impossible. It is possible that they managed to cross the river, in the dark, in a two wheel drive vehicle. But it is unlikely. The suggestion that they climbed down and retrieved the body is extremely unlikely and, given the time available, fanciful.

The visit to Mrs Moore’s mother’s house

459. The accused claimed that after they had “picked up” Mr Russell from the side of the road, they took him to Kieran Moore’s mother’s house (“Mrs Moore”). On 9 January 2013 he told UCO 1 that Mrs Moore was a “bad drunk” and “she started, Who’s fuckin cryin; in the car? Get the cunt away from me house”. He repeated this when he spoke to UCO 10 on 16 January. He said they went to Kieran’s mother’s house “to drop off the stuff we come to get from, to Sydney”. Mrs Moore didn’t see him because, according to the accused, “she’s an old drunk”. However, she was “carrying on, Oh who’s makin’ all the noise out in the car.”

460. I find this account completely implausible. No evidence was called from Mrs Moore. The way the story was told, it seemed that the accused was inside while Mr Russell was left in the car. There is no explanation as to why he did not attempt to escape. The way the accused related the story, using a funny voice for that of Mrs Moore, increases my belief that the accused was making up a story.

Burning the clothes and night vision

461. Another part of the accused’s story that is implausible is the suggestion that he and Mr Moore burned their clothes along with the vehicle and then ran home in their underwear. Again, this version of events is possible but I find that the account was simply made up.

462. Similarly, when the UCOs were asking how he did the things that he claimed to have done in the middle of the night, the accused claimed “I’ve got good eyes in the dark” (15 January 2013) and “I've got pretty good eyesight in the dark though. Me eyes adjust or something” (16 Janaury 2013). This sounded like a boast and a fabrication.

Conclusion as to accused’s confessions to the undercover police

463. Based on the above matters I am satisfied that the detail of the accused’s admissions to police and his description of the events is not reliable. In particular:

1. I am satisfied that the accused deliberately exaggerated his account of the March assault. This finding is based on a comparison between the accused’s description of the injuries sustained by Mr Russell and the hospital records of the injuries that truly were occasioned. It is also based on the accused’s assertion that Mr Russell was in intensive care for six weeks whereas he was in fact in hospital for only 2-3 days.

2. I am satisfied that his motivation in exaggerating the seriousness of the March assault was to “big note” himself and to impress the gang members by pretending to be tough.

1. I am satisfied that the accused did not go to Campbelltown to buy drugs on 2 June 2009. This is based on the absence of any evidence to support his assertion and the telephone cell tower evidence that suggests he was in or near Bathurst all day on 2 June 2009.

2. I am satisfied that the description of attending Mrs Moore’s house was a lie. The account, which was given twice, was implausible.

3. I am not satisfied that the accused and Mr Moore stole a car and later burned it out. This is based on the lack of any reports of a car being stolen at the relevant time and place and the absence of any evidence of a report of a burnt out car in Bathurst at the time. His description of the switch of cars is implausible.

4. The accused’s description of the shoes worn by Mr Russell (black shoes) is inconsistent with the white skate shoes actually worn by Mr Russell.

5. I am not satisfied that the accused and Moore drove to Sofala, crossed the river near Wallaby Rock in a two-wheel drive, accessed a cliff face and pushed Mr Russell to his death. This is based on the implausibility of the account, the nature of the terrain and river crossing and the time available between the calls made that accessed cell towers around Bathurst and his access to internet browsing via his mobile telephone.

6. I am not satisfied that the accused disposed of Mr Russell’s body in the vicinity of the Red Hill Road and Tobins Oaky Creek in the area that he showed the UCOs on 15 January 2009. No body or mine shaft was found there. There is no clear evidence of flooding in that precise location or evidence that the erosion evident on the view of the scene occurred since 2009. The area indicated by the accused was at the top of the bank and this area did not appear to have been washed away during flooding. While the theory that the body and the mine shaft was washed away is possible and cannot be ruled out with any certainty, it is not a likely explanation for the lack of physical evidence supporting the accused’s admissions.

7. I am positively satisfied that it is not possible that the accused did the things he described to the UCOs in the time available by reference to the telephone calls.

8. I am satisfied that the accused made up the account of burning his clothing and running home in his underwear.

THE PROSECUTION’S ALTERNATIVE CASE

464. While the learned Crown Prosecutor opened the trial by saying that the case against the accused depended on an acceptance that the statements that the accused made to the undercover officers were a true representation of his conduct towards the deceased, the prosecution at all stages seemed to concede that at least parts of those statements were exaggerations or, as it was put in the cross-examination of the accused, “embellishments”. The Crown accepted that the time constraints established by the telephone records meant that it was not possible that the whole of the accused’s version of events was true. In particular, the Crown conceded that accused was “embellishing” when he said that he had used a stolen car and that the car was burned out.

465. The Crown submitted that it was “possible” that the accused pushed Mr Russell from the cliff, but that contention was not urged with any great force. It was not specifically put to the accused that he had pushed Mr Russell from the cliff although that assertion may have been implicit in some of the cross-examination. I do not draw any inference adverse to the Crown in relation to the failure to put that matter directly. It seemed a responsible and ethical approach in view of the difficulties in accepting that this is, in fact, what occurred.

466. However, the Crown submits that it is open to me to find that the accused did do an act that caused the death of Mr Russell in circumstances amounting to murder (that is, with intention to cause really serious injury). It was specifically put to the accused that he and Mr Moore came across Andrew Russell on the Sydney Road on 2 June and “killed him” and “dumped his body out at Sofala”. Later it was put to him that they had pulled over at the bridge, waited for Mr Russell, got out of the car and “bashed him” and that “he didn’t wake up” so they moved the body to the bush opposite the Good Guys and later dumped the body at Sofala. That cross-examination was based on Kieran Moore’s account to police on 18 January 2013. The accused denied this. This evidence was not tendered to prove the truth of the contents of the statement although under s 60 Evidence Act it may have been admissible for that purpose, having been admitted without objection for a different purpose (to attack Mr Moore’s credibility). Mr Moore gave evidence that this “off the record” version was untrue. Accordingly, there is no direct evidence that this occurred although it bears some similarities with one of the versions provided by the accused to Jodi Biles.

467. The Crown invites me to draw an inference that this, or something similar, is what happened by a process of circumstantial reasoning. It relies on the whole of the evidence and all of the circumstances. Without being exhaustive, it relies on the following circumstances:

1. Mr Russell is dead.

2. Mr Russell was seen by Mr O’Neill at the corner of the Sydney Road and Littlebourne Street, Kelso shortly before 11pm on 2 June 2009.

3. The accused told the undercover police that he and Kieran Moore came upon Mr Russell late at night (he said 11pm at one stage) on the (Evans) Bridge, which is around 1.8 km to the west of Littlebourne along the Sydney Road.

4. The telephone records showed that the accused was in Bathurst at the relevant time and that he was “out and about” late in the evening and early the following morning.

5. The telephone records suggest that he was not at either of the premises he usually stayed and may have been with Mr Moore.

6. There was a 2-3 hour gap in the telephone records that may be explained by a trip to Sofala where there was no Optus Service or by the fact that the accused told the UCOs that he had turned his ‘phone off.

7. The accused had a known animosity towards Mr Russell and a motive to harm him.

8. The accused made a number of admissions and, even though the details of those admissions are inconsistent or exaggerated, there is no sensible explanation for them other than that the accused is guilty.

9. The accused’s conduct demonstrated a consciousness of guilt. This conduct included statements he made to a variety of people and his attempt to influence a witness.

468. The Crown drew attention to the timing of Mr O’Neill’s 000 call, the attendance by police and the admissions made by the accused as to the time and location referred to by the accused in his admissions to the undercover police. In his closing address, the Crown Prosecutor submitted:

“The level of intoxication seen by O'Neill was enough to concern him and for him to attempt to get Russell to get off the road because he was fearful that he was going to be struck by a car. That level of intoxication would suggest that in the time available between when he was seen by O'Neill, and O'Neill contacted triple‑0, spoke to the police, and the police were subsequently called to go to that area, that were he still wandering about the street he would have been expected to have been seen in a similarly intoxicated state.

The point I am making is he would not have been expected to have travelled very far in his intoxicated state. That was that he was not found, not seen by the police on the Sydney Road is consistent with the account that Tony Simmons later gave of having picked him up and taken him from the Sydney Road that night. He was seen by O'Neill. A short time later, nowhere to be seen by the police, who had been sent there to find an intoxicated person wandering on the road, and he disappeared. It doesn't prove of itself that he was taken by Simmons, but it is consistent with that event having taken place in a fairly short time after the sighting by O'Neill.”

469. The Crown says that the accused’s denials should be rejected and that his evidence lacks credibility.

470. The Crown submitted that after three or four years the accused had nothing to fear from a police investigation. Accordingly, there was nothing that might [REDACTED]. He claimed that he had covered his tracks and that the police had “no idea”. He even said that he laughed at the police.

471. The Crown also submitted that one of the accused’s stated explanations for making the admissions, namely that he thought he might get paid $10,000 [REDACTED], does not withstand scrutiny. This was because he was not told about the $10,000 until 9 January 2013, the very day upon which he made the admissions. This is borne out by the recordings. The chronology is that UCO 1 told the accused that [REDACTED] had given UCO 3 $10,000 in cash. The conversation continued for around 35 minutes during which there were lengthy silences. In response to a compliment for staying calm on hearing of [REDACTED], the accused made an admission that he sent [Mr Russell] on a holiday from which he would not return. UCO 9 then arrived and was in the car for around 12 minutes. The accused said very little during the conversation between UCO 9 and UCO 1. Once UCO 9 left, the accused made the detailed admissions including the detail of pushing the victim from a cliff and putting the body in a mine shaft. While the submission has some force, the possibility remains that the accused came up with his unsophisticated plan in the time he had to think after he was told about the $10,000 provided to UCO 3.

The accused’s response to the circumstantial case

472. Mr Young SC contends that the Crown is asking me to “cherry pick” through the accused’s admissions and to ignore things that show that he was lying and exaggerating when he spoke to the police.

473. He relies on the sighting of Mr Russell on 17 June 2009 by somebody who knew him (Jennifer Coloton). He says that this raises a doubt that Mr Russell was killed before that date. While he concedes that Mr O’Neill’s sighting does not need to be proved beyond a reasonable doubt, he reminds me of the dangers of identification evidence and the fact that Mr O’Neill was identifying a stranger who he saw relatively briefly, while driving at night. He noted that the identification took place some weeks after the events. It might also be said that the identification was of single photograph, an issue which the Crown acknowledged in argument.

474. I took Mr Young to submit, in essence, that I would be guessing or speculating as to what happened based on a number of suspicious circumstances and, in doing so, relying on admissions that were otherwise demonstrated to be false. He relied on the fact that the accused wanted to join the pretend criminal gang and to make money and that this caused him to lie and exaggerate about what he did to Mr Russell in the course of the March assault and then to make up a story about Mr Russell’s murder that had its genesis in the rumours that had spread in the months after he disappeared.

conclusion

475. In reaching my final conclusion I have considered closely the telephone records, the timing and location of the alleged events, the identification of both Mr O’Neill and Ms Coloton and the accused’s evidence. I have also considered the whole of the evidence and the submission on both sides.

476. I have examined the telephone records for the days on either side on 2 June 2009. It was not unusual for the accused’s telephone to be active into the early hours of the morning. For example, on 29 May 2009 there were calls until 3:09am and on 30 May 2009 there were calls at 1:58am, 3:39am and 5:46am. On 7 June 2009 there were calls at 1:57am and 3:15am.

477. On one analysis the window of opportunity for the accused and Mr Moore to have come upon Mr Russell on the Sydney Road that night is very narrow. The best evidence of the time of Mr O’Neill’s 000 call is that it was made shortly before 22:56pm. The precise time of the 000 call is not in evidence but the police record (COPS event) was created at 22:56pm. Mr O’Neill said that he saw a police car heading east on the Sydney Road as he drove back into Bathurst and the COPS event records that police attended the area at 23-05pm and left again at 23:08pm. The COPS event refers to “Sydney Road (Great Western Highway) Kelso” and not to Littlebourne Street. It is safe to assume that the police (who did not give evidence in the trial) were looking for him from the time they crossed the bridge (assuming they came from Bathurst). The police did not see the man described by Mr O’Neill.

478. On Mr O’Neill’s evidence the man was intoxicated and moving slowly. The man had not even managed to leave the intersection in the time that Mr O’Neill took to drop his son at work and return to the intersection (although Mr O’Neill thought this would have taken less than five minutes). The place where the accused and Mr Moore are alleged to have picked him up is around 1.8 km away. It is difficult to imagine that the man could have walked that distance, drunk, in the time between the 000 call and the police attending on Sydney Road. In that time, the accused had to get out of the car and either bash Mr Russell on the side of the road or somehow force him into the car. While that could have happened quickly, it would have been a conspicuous occurrence to a police officer looking for a man in that area.

479. Of course, the other possibility is that the police did not see Mr Russell for reasons that are unexplained. He could have been sitting in a paddock or by the side of the road. It was dark. The police were there for a short time. He then walked the 1.8 kilometres to the bridge and was then abducted or assaulted by the accused. The timing provided by the accused was not precise and so the event could have taken place long after Mr O’Neill’s purported sighting.

480. If the evidence of Mrs Coloton might possibly be correct, the accused was still alive on 17 June 2009 and the theory of the events of 2 June 2009 falls apart. I suspect that Mrs Coloton is mistaken. While she knew Mr Russell and was very confident at the time that she recognised him, her confidence diminished over time and the man that she saw had a different posture and gait to that of Mr Russell. Looking to objective evidence, Mr Russell received a Centrelink payment on 16 June and had not accessed it. If he was still alive and walking around Bathurst and Kelso, it was against his ordinary habits not to have withdrawn this money on the day it was received.

481. Mr O’Neill had a reasonably good opportunity to make his observation because the street lighting was good and he looked at the man directly, from a close distance, over an estimated period of ten seconds. He spoke directly to the man and was sufficiently concerned to call the police. On the other hand, he was identifying a stranger at night and did not make the identification until 25 June 2009, around three weeks later. His identification was of a single photograph. This gives rise to the possibility that he was influenced by implicit suggestion. I do not suggest any misconduct on the part of the police but merely note that the cogency of the evidence is somewhat diminished. The clothing described by Mr O’Neill is not consistent with what Mr Russell was wearing earlier in the day although the evidence or Mr Russell’s intoxicated state supports the reliability of the identification. As to the objective likelihood of Mr Russell being in Kelso at the time, there is no evidence that Mr Russell intended to go to Kelso that night and there was evidence that he was fearful to return to the house in Cripps Place. He picked up his medication that day and these were located back at Slim Street. He would not have gone back to Cripps Place for that purpose. He said that he was going to the Dudley hotel in West Bathurst. That was 1.2 km from Mr Waring’s house. Kelso was 6 km away.

482. I accept that it is possible that the accused lied about his involvement in order to big-note himself with the undercover operatives. This is consistent with the way he exaggerated the impact of the March assault. Contrary to his evidence, and that of Detective Lukacs, there was a good deal of evidence that the gang was capable of resorting to violence in carrying out its criminal endeavours. It was involved in [REDACTED]. It was involved in [REDACTED]. On 6 December 2012, one of the UCOs spoke about hiding bodies under roadworks. At the time the admissions started to be made, the accused was led to believe that a gang member [REDACTED]. As clever and well executed as the undercover operation was, it also had the capacity to induce a false and unreliable confession.

483. While parts of the accused’s evidence were not credible and while he was a relatively unimpressive witness and a man with criminal inclinations, I am unable to reject his evidence altogether.

484. The evidence causes me to have grave suspicions that the accused killed Mr Russell. However, the combination of the timing of events, the dangers associated with Mr O’Neill’s identification and the significant possibility that the accused was big-noting himself to the undercover officers posing as criminals causes me to have a substantial and reasonable doubt that the accused killed Mr Russell.

VERDICT

485. For those reasons I find the accused not guilty of the murder of Andrew Russell at Sofala between 1 and 20 June 2009.

486. On his plea of guilty and on the evidence adduced in the trial, I find the accused guilty of count 2 of assault occasioning actual bodily harm on 20-21 March 2009.

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Decision last updated: 09 June 2015