R v Coss (No 10 – Verdict)

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

Background

1. [5]

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

2. [6]

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

3. [7]

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

4. [8]

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

5. [9]

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

6. [10]

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

7. [11]

   The other recorded: [11]

8. [12]

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

9. [13]

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

10. [14]

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

11. [15]

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

12. [16]

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

13. [17]

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

14. [18]

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

15. [19]

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

16. [20]

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

17. [21]

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

18. [22]

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

Directions

1. [23]

   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.

2. [24]

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

3. [25]

   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.

4. [26]

   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.

5. [27]

   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.

6. [28]

   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. (1)

      That Mr Willis is, in fact, deceased.

   2. (2)

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

   3. (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.

7. [29]

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

8. [30]

   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.

9. [31]

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

10. [32]

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

11. [33]

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

12. [34]

    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.

13. [35]

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

14. [36]

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

15. [37]

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

16. [38]

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

17. [39]

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

18. [40]

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

19. [41]

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

20. [42]

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

The evidence

1. [43]

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

2. [44]

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

3. [45]

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

4. [46]

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

5. [47]

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

6. [48]

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

7. [49]

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

8. [50]

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

9. [51]

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

10. [52]

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

11. [53]

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

12. [54]

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

13. [55]

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

14. [56]

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

15. [57]

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

16. [58]

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

17. [59]

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

18. [60]

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

19. [61]

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

20. [62]

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

21. [63]

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

22. [64]

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

23. [65]

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

24. [66]

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

25. [67]

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

26. [68]

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

27. [69]

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

28. [70]

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

29. [71]

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

30. [72]

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

31. [73]

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

32. [74]

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

33. [75]

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

34. [76]

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

35. [77]

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

36. [78]

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

37. [79]

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

38. [80]

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

39. [81]

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

40. [82]

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

41. [83]

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

42. [84]

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

43. [85]

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

44. [86]

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

45. [87]

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

46. [88]

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

47. [89]

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

48. [90]

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

49. [91]

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

50. [92]

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

51. [93]

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

52. [94]

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

53. [95]

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

54. [96]

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

55. [97]

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

56. [98]

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

57. [99]

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

58. [100]

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

59. [101]

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

60. [102]

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

61. [103]

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

62. [104]

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

63. [105]

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

64. [106]

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

65. [107]

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

66. [108]

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

67. [109]

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

68. [110]

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

69. [111]

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

70. [112]

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

71. [113]

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

72. [114]

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

73. [115]

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

74. [116]

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

75. [117]

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

76. [118]

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

77. [119]

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

78. [120]

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

79. [121]

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

80. [122]

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

81. [123]

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

82. [124]

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

83. [125]

    The redacted statement of Mr Logan dated 6 December 2018 was tendered. [90] Mr Logan was married to Mrs Logan. He moved into 4 Bassett Street Bingara in 1991. He moved away from Bingara in 2012, before returning in 2018. The accused was previously in a relationship with his niece, Joanne Logan.

84. [126]

    In his statement, Mr Logan discussed the deceased. He said that he called the deceased “Spaz” because that is what he liked people to call him. He also stated that the deceased used to like marijuana but would “mind his own business and would never interfere with anybody.” [91] He said that people would try to pick a fight with the deceased, but that the deceased would just walk away from them. Mr Logan also said that the accused used to “pick at” [92] the deceased by calling him names and recalled an occasion where he witnessed an argument about a wardrobe.

85. [127]

    Mr Logan also said that, following the accused’s separation from his niece, Ms Logan, in 2010, Mr Stonestreet moved into the accused’s house at 6 Bassett Street. Mr Logan also said that the accused would often throw parties at his house during this time.

86. [128]

    The statement of Ms Merrit dated 6 December 2018 was tendered. [93] Ms Merrit had lived in Bingara her whole life and worked at the Bingara RSL. She had known the accused her whole life and was in a relationship with him in 1994. She had also known the deceased from the time she was born and was close with him until around two or three years prior to his disappearance.

87. [129]

    Ms Merrit referred to a conversation with Darren Jack in relation to the deceased’s disappearance, in which Mr Jack told her that the accused “picked up a piece of wood with a tech screw in it, smacked Darren with it and accidentally killed him, so they had to get rid of the body”. [94] She repeated this to Ms Holder and perhaps Mr Lanagan. She also stated that she spoke with the accused about what she had been told and the accused told her “it didn’t happen, I didn’t kill him”. [95]

88. [130]

    Ms Merrit also referred to the relationship between the deceased and the accused, the various rumours she heard as to what happened to the deceased and recalled the accused was “whinging for about two or three weeks” [96] about feeding the deceased’s dog following the deceased’s disappearance.

89. [131]

    The statement of James Wilson Rogers dated 23 July 2019 was tendered. [97] Mr Rogers lived and worked around the Bingara area for his whole life. He had known the deceased since he was about 13 years old and considered him a friend. He said the last time he saw the deceased was about two weeks before Christmas in 2010 at Laurel Gudshus’ house. He recounted that the deceased said to Ms Gudshus that he was going to miss her birthday because he was going away at Christmas.

90. [132]

    The statement of Jack Walton dated 28 July 2018 was tendered. [98] Mr Walton lived in Bingara from the time he was four years old. He is the cousin of the deceased. Mr Walton referred to a conversation he had with Mr Angus Legg about the deceased in which Mr Angus Legg told him that the accused killed the deceased by hitting him over the head with “a piece of 2x4 with a baton screw in it” [99] and that Mr Stonestreet was there. Mr Walton said Mr Angus Legg knew this because Mr Stonestreet had told Mr King who had told Mr Legg, the father of Mr Angus Legg.

91. [133]

    The statement of Michael Warwick dated 17 August 2019 was tendered. [100] Mr Warwick lived in Inverell and, at the time of the statement, had been a member of the Odin’s Warriors Motorcycle Club, Inverell Chapter for 20 years. He said, in essence, the deceased did not have any connection to the Odin’s Warriors Motorcycle Club, its club members or the partners of its members.

92. [134]

    The statement of Norman Wilson dated 10 October 2018 and the transcript of his evidence dated 10 October 2018 were tendered. [101] Mr Wilson had lived in Bingara for a period of time and had lived with the accused.

93. [135]

    Mr Wilson said that he knew the deceased as a child. He stated that they got along but did not have a good friendship. He recalled that the last time he saw the deceased was at the Sportsman’s Hotel at around 6.30pm to 8.00pm on a Friday night around Christmas time.

94. [136]

    Mr Wilson referred to the relationship between the accused and the deceased, and said that while living with the accused, the accused never mentioned anything about the deceased and he never witnessed any arguments between them (although I note this is probably inconsistent with the preponderance of the evidence). Mr Wilson referred to the accused’s owning a cream-coloured ute, the sale of that vehicle, and said that he heard various rumours about why the deceased was missing.

95. [137]

    The statement of Detective Senior Constable Campbell dated 27 October 2019 was tendered. [102] Detective Senior Constable Campbell recounted the arrests of Mr Stonestreet and the accused and the search of the accused’s residence.

96. [138]

    The statement of Senior Constable Benjamin Stanley dated 28 October 2019 was tendered. [103] Senior Constable Stanley was the searching officer at the execution of the warrant at the accused’s residence.

97. [139]

    The statement of Ms Gudshus dated 17 July 2019 was tendered. [104] Ms Gudshus moved to Bingara when she was 14 years old. She knew the deceased and was in a relationship with the accused in 2010.

98. [140]

    Ms Gudshus referred to the relationship between the accused and the deceased. As to her relationship with the accused, she said that he was a “good boyfriend”. [105] She also recounted an event sometime before Christmas 2010, in which a group of people, including the accused, the deceased and the deceased’s girlfriend met up to kill a steer. She stated that the deceased’s girlfriend was the “girlfriend of a bikie member”. [106] Ms Gudshus also said that the accused had a bat at his house and owned a yellow ute.

99. [141]

    The statement of Angus Legg dated 26 July 2019 was tendered. [107] Mr Angus Legg lived in Bingara and was the son of Mr Legg. Mr Angus Legg knew the deceased.

100. [142]

     In his statement, Mr Angus Legg said he overheard a conversation between his father, Mr Legg, and another man named Frank Craddock. He stated that he heard his father say that the accused “wailed [the deceased] with a bit of timber with a screw in it”. [108] He said his dad mentioned Mr King’s name but did not actually say that Mr King told him. Mr Angus Legg said that he recounted this version to his friend Mr Walton, the cousin of the deceased.

101. [143]

     The statement of Bradley Craddock dated 11 May 2022 was tendered. [109] Mr Craddock said that he had his 21st birthday party on 3 December 2010 in Bingara. He said that a number of people were in attendance and the party went into the early hours of the next morning.

102. [144]

     In addition to the above, a number of statements obtained by police for the missing persons investigation and tendered before the Deputy State Coroner were tendered by the Crown. [110] I have referred above to the Deputy State Coroner’s findings. I do not propose to summarise that evidence.

Matters not in dispute

1. [145]

   There were several matters that were not in dispute. These can be briefly stated.

2. [146]

   The accused and the deceased lived next door to one another at 6 and 8 Basset Street respectively. A number of witnesses gave evidence of issues between them. There was evidence that the two men did not get along and had an “off and on relationship.” [111] Mr Logan noted in his statement that the accused used “pick at” the deceased by calling him names. [112] Ms Stevenson spoke of the accused and the deceased having “little swears over the fence.” [113] The accused himself reported that he had a difficult relationship with the deceased. In a statement to police dated 14 December 2012, in relation to the missing persons investigation, the accused stated that he and the deceased “had plenty of arguments”, [114] and, as noted above, he told Detective Senior Constable Aslin that he and the deceased “had plenty of punch ups”. [115]

3. [147]

   It appears that in around June or July 2010, the accused bought a number of sheep, and agreed with the deceased to put them in the deceased’s paddock. This led to a disagreement, with a number of witnesses recounting disharmony between the deceased and the accused about sheep and the payment of money. In her statement, Ms Wilson recounted a verbal argument between the accused and the deceased over the sheep. Additionally, Mrs Johnson and Mr Johnson gave evidence that Mr Willis had expressed fear of the accused and told them that there was an occasion where, following an argument about the sheep, he had been run off the road by the accused.

4. [148]

   The accused and deceased also had a number of other disagreements. In his statement, Mr Pilling recounted an occasion where he witnessed the accused and the deceased have a heated conversation about some of the deceased’s sheep that had died while the he was away. Mr Stonestreet also gave evidence that, on at least two occasions, the deceased argued with the accused about the playing of loud music. In his statement, Mr Logan recounted an incident where he witnessed an argument between them about a wardrobe, in which the accused destroyed a wardrobe that appeared to belong to the deceased’s. Tony Roger Black, whose statement was tendered at the coronial inquest, stated that a few weeks before 10 December 2010, the accused said “I will fuckin kill him. I have had enough of arguing over the fence” [116] in respect of the deceased. Mr Black was not called before me, and it is difficult attribute meaningful weight to this statement.

5. [149]

   It was not in dispute that the accused had been an employee of the Council for some years. He was engaged as a plant operator on the construction team, a role that involved him driving trucks. Further, it was not in dispute that, as a result of his work (and to an extent it was likely as a result of his long connection with Bingara) he was familiar with the area around Bingara including the Narrabri and the Killarney Gap Roads. In the time prior to the disappearance of Mr Willis, the accused had worked on the Narrabri Road, however, the evidence of Mr Kennedy was that the area where the accused had been working was, at its closest point, in the order of 5 kilometres from the top of the waterfall from where the deceased’s body was apparently disposed.

6. [150]

   It was additionally not in issue that the accused had suffered a serious injury at work, including a fractured collarbone on 21 July 2008, when the truck he was driving overturned. Medical records relating to his injury were tendered. [117] He was able to return to work after some months. When he returned, he was on restricted duties. By December 2010, he had returned to driving trucks. Whether because of the injury or otherwise, he did not perform labouring duties. While it is not possible to be precise as to how the injury impacted the accused in December 2010, the injury and the size of Mr Willis raise an issue as to whether the accused could have disposed of Mr Willis’ body on his own. This was a question raised by witnesses familiar with the accused’s injury.

7. [151]

   It was not in dispute that the accused kept a bat at his house. Ms Gudshus, an ex-partner of the accused, recalled in her statement that the accused had a bat at his house that looked like “an older timber baseball bat” that was a “natural wood colour” with “a piece missing from it”. [118] She said the accused referred to it as a “youllbe” as in “you’ll be fucked if I hit you with it”. [119] Mr Stonestreet also gave evidence about his prior knowledge of the bat. This is discussed below in the context of his evidence.

8. [152]

   The accused owned a “yellow” [120] or “gold” [121] ute in December 2010, which was, at least, capable of transporting the body of the deceased in the tray. This vehicle had previously been owned by Mr Legg. During the investigation, police released information connecting the ute with the disappearance of Mr Willis. Mr Marle expressed concerns to the accused during a recorded conversation with respect to the presence of blood in the ute. The ute was forensically examined by police on 9 February 2019 and no evidence implicating the accused was located (although it must be noted that this examination was more than eight years after Mr Willis’ death).

Last sightings of the deceased

1. [153]

   As referred to above, there was a Council Christmas party held at the Sportsman’s Hotel on Friday 10 December 2010. Mr Willis was seen at the Sportsman’s Hotel that night. Additionally, a number of witnesses gave evidence that they saw the deceased on a Friday around Christmas time. There was evidence given by Mr Cooper and others that suggested Mr Willis was affected by drugs on the night of the Shire Christmas party. There was also information suggesting he was refused entry to the Imperial Hotel due to his level of intoxication. It was the prevailing view, at least at one stage, that the night of 10 December 2010 was the last occasion on which the deceased was seen alive. There were, however, subsequent sightings of the deceased. Mr Cooper said that he saw the deceased the following Monday, 13 December 2010. Mr Cooper said he had a conversation in relation to the deceased wanting to spread lawn clippings in a park where Mr Cooper was engaged in work on behalf of the Council. Mr Cooper had a diary note establishing that he was at the particular park with David Bilsborough on 13 December 2010. He further recalled discussing with Mr Bilsborough, the deceased’s condition at the pub on the preceding Friday. The diary note and the conversation with Mr Bilsborough provide significant support for Mr Cooper’s account.

2. [154]

   In addition to the above, Mr and Mrs Johnson each gave evidence of seeing the deceased on 16 December 2010. Each said that they saw Mr Willis outside the Sportsman’s Hotel and went over and joined him in the hotel. They spent approximately an hour and a half with him. The Johnsons were able to nominate the date as it was Mr Johnson’s brother’s birthday, and this was discussed with Mr Willis. The Johnsons each recalled a delivery driver, Jeffrey Roberts, known as “Parrot”, [122] asking Mr Willis if he could help him unload the truck at the RSL. Mr Johnson said there were extra goods to unload as a result of the upcoming Christmas break. Both Mr and Mrs Johnson said they also discussed Mr Willis having booked his car in for a windscreen repair on 20 December 2010 at Inverell. Mr Johnson was in Inverell on that date and went to the windscreen repairer and was told that Mr Willis had not turned up. Mr Roberts, in his statement, confirmed that there had been a single occasion on which Mr Willis helped him unload the truck at the RSL club. He did not know what day it was but confirmed he delivered in Bingara on Thursdays, which was, at least, consistent with it being 16 December 2010, as nominated by the Johnsons. The detail in the accounts of Mr and Mrs Johnson, tying the sighting to 16 December 2010 was such that the Crown submitted this should be accepted as the last sighting of the deceased.

3. [155]

   Related to the evidence that Mr Willis was last seen on 16 December 2010, Mrs Johnson gave evidence that the night of 16 December 2010 was very stormy. She said she woke up about 1:30am or 2:00am and saw a car going up to the lookout at Bingara. Mr Johnson said he also saw a car at the lookout with bright lights facing towards them.

Various theories

1. [156]

   There were various theories in relation to the disappearance and, what, until recently, was the presumed death, of Mr Willis. One theory, as discussed above, was that he had drowned crossing the river. This theory was disproved by the finding of bones at Doctors Creek. While there was no direct evidence as to the relationship between the Gwydir River and Doctors Creek, counsel for the accused, took no issue with the Crown submission that the Gwydir River does not flow into Doctors Creek. This can be inferred from the fact that Doctors Creek is a tributary, presumably leading to a larger watercourse. It would not be expected that a large river such as the Gwydir would flow into a small creek. This appears to be also consistent with the respective locations of each waterway.

2. [157]

   Another theory was that the deceased was killed by members of an “outlaw motorcycle gang”. Senior Constable Harris gave evidence he had been informed of rumours in Inverell that Mr Willis had been in a relationship with the wife or partner of a “bikie”. [123] Senior Constable Harris was also given hearsay information that Mr Willis was bashed as a result of this affair. In his statement, Mr Lindsay referred to a rumour that the deceased was sleeping with a “bikies missus and a bikie was responsible”. [124]

3. [158]

   Ms Gudshus said in her statement that she had met the deceased’s girlfriend who was “the girlfriend of a bikie member”. [125] However, some of the witnesses disputed the existence of such a relationship. In her statement, Ms Dixon, a good friend of the deceased, said that the deceased never told her that he was sleeping with a “bikies girlfriend”, [126] and Mr Murray Grant, in his statement, said that when he asked the deceased about rumours that he was “fucking a bikies Mrs” in 2007, the deceased laughed and said, “I started that rumour because I’m fucking the Mrs of the copper from Warialda.” [127] Ms Wilson, who was at some stage in a relationship with Mr Willis, denied also being in a relationship with a “bikie”. [128]

4. [159]

   The strongest evidence in support of this theory came from Ms Stevenson. In her statement dated 20 August 2018, Ms Stevenson said that on 28 July 2012, she visited the Imperial Hotel at Inverell and showed the deceased’s photograph to a woman who was known to her as the girlfriend of a bikie called “Pirate.” [129] She stated that this woman confirmed that she had been sleeping with the deceased while “Pirate” was in gaol. Ms Stevenson then said that the man she knew to be Pirate appeared, dragged her off her chair and smashed her head into the steel staircase, before saying “we know where he is, and he will never be found.” [130]

5. [160]

   Senior Constable Harris also spoke to Lane Willis, the deceased’s brother, who relayed to him that Mr Willis was “concerned re-bikie’s”. [131] There was evidence, the quality of which is not clear, to suggest that the Nomads, an “outlaw motorcycle gang”, were in Narrabri at around the time of Mr Willis’ disappearance. [132] Senior Constable Harris was given hearsay information that the Nomads had mistaken Mr Willis for his brother Lane and were after him. Mr Marle also gave evidence that Mr Willis had told him that his brother Lane had done a drug deal and used Mr Willis’ name which had led to some concern. [133] In her statement dated 26 March 2019, Ms Stevenson also recounted hearsay information from Mr Wilson that he witnessed the deceased having an altercation with a man named Gary who had connections to “the bikies in the Gold Coast that shot each other.” [134]

6. [161]

   It is clear that Mr Willis’ lifestyle and interactions were such as to sometimes get him into trouble. The evidence as to his possible demise at the hands of bikies is somewhat vague. It is, however, evidence that I take into account in determining whether I am satisfied beyond reasonable doubt that Mr Willis met his death by the hand of the accused.

Mr Marle

1. [162]

   As I have already indicated, Mr Marle was a very important witness in the Crown case. In December 2010, Mr Marle was 40 years old. He had lived in Bingara on an off throughout his life. He had also lived in Warialda for something in the order of 20 to 25 years. While living in Warialda, he would visit Bingara and spend time either at his mother’s home or the homes of others. Mr Marle had been in receipt of a disability support pension since he was 22 or 23 due to his bipolar condition. In 2010, he lived at Bingara and Warialda and occasionally stayed at the home of the accused. His social life revolved broadly around the comings and goings at the Sportsman’s Hotel. His friends were the accused, Mr Stonestreet, Mr Wilson, their respective partners, Mr Legg, and Mr Willis.

2. [163]

   Mr Marle gave an account of the night on which, on his version, the accused murdered Mr Willis. He said he was fixing cars at Bingara Motors that day and left at about 5:00pm or 6:00pm. [135] He went to his mother’s and after that went to the accused’s house, he thought between 5:00pm or 6:00pm, because they had to get to the local shop to buy supplies before 6:00pm when it shut. He said that he, Mr Stonestreet, and the accused then went to the Sportsman’s Hotel. He said that he ordered a beer from the front bar and then walked out the back to have a cigarette. When walking through, he went past the TAB where he saw Mr Willis making a bet. He said that Mr Willis said something like “you trying to root me?”. [136] Mr Marle said that the accused and Mr Stonestreet joined him out the back. They said that Mr Willis had also said something to them as they passed him. He said that the three of them left through the main hallway, not through the bar, after about half an hour, having each had one drink. Mr Marle said they went back to the accused’s house, ate dinner, continued to drink, smoked cannabis, and watched some TV. He said there was some discussion of the interactions with Mr Willis at the Sportsman’s Hotel.

3. [164]

   Mr Marle said that later that night, the three of them were discussing Mr Willis and then discussed what would happen if Mr Willis had approached the accused or vice versa and were having a laugh. He then said that the accused then said “you know, bloody, I’m gonna kill him”. [137] He said that someone responded “oh, we’ll sort this out tomorrow”, [138] to which the accused responded “Well, there’s not going to be a tomorrow”. [139] Mr Marle said that, at some point during this discussion, the accused brought out his bat. Mr Marle said it seemed like the accused was serious. [140] Mr Marle said it was a big brown wooden baseball bat over a metre in length. It had a hose clamp of the type used for a car radiator around the heavy end of it. He said there was a crack but it had the clamp around it so it was closed up. There was no staining on the wood, and it had new lacquer. [141]

4. [165]

   Mr Marle said that he told the accused “you can’t do that sort of thing” and the accused then put the bat away. [142] He said that they then had more to drink and more cannabis and that he eventually passed out on the leather lounge in the lounge area.

5. [166]

   The Mr Marle then said he heard a dog noise and woke up abruptly to a loud banging noise. He saw “the back of the dog leaving the house”, [143] “staggered to [his] feet and went outside” [144] via the living room door onto the verandah. (Mr Marle had provided a plan of the house). [145] There were lights on outside the house near the door used by Mr Marle directed towards the gate at the front of the property. Mr Marle said he was on the verandah and saw Mr Stonestreet going out of, or standing at, the gate at the front of the property.

6. [167]

   Mr Marle said he went out to the yard to the ironbark tree, where the lights shined, from where he heard the accused and Mr Willis out on the road. He said Mr Stonestreet was just past the “gateway” at this stage. He said he walked a couple more steps towards the gate and could hear Mr Willis and the accused talking. Mr Marle said that Mr Willis said “Why don’t you come out here too, Scotty?” [146] to which he replied “I’m not fuckin’ going out there. I’m not going anywhere near ya”. [147] Mr Marle then said he heard more noises and said: [148]

7. [168]

   According to Mr Marle, Mr Willis then said “[o]h, I’ll come back, we’ll sort this out tomorrow” [149] and the accused said “There’s not going to be a tomorrow”. [150] Mr Marle, in his own mind, said “[o]h my fuckin’ God”, [151] and, having realised these words were used by the accused earlier, said “I was like, ‘[n]o, this can’t be fucking happening’”. [152] He gave the following evidence: [153]

8. [169]

   Mr Marle described the accused holding the thicker part of the bat with his right hand and using his finger to point, while the length of the bat was against his arm. At this point, he said Mr Stonestreet was about 1.5 to 2 metres to his right and the accused was a few more metres away to his left.

9. [170]

   Mr Marle said the accused walked into the living room followed by Mr Stonestreet and himself, less than a minute behind. [154] He said the accused was about 10 metres in front. He did not see the bat again after they had walked inside. Mr Marle said he asked the accused where Mr Willis was and he said, “He’s out there dead”. [155] Mr Marle was pressed about the conversation in cross-examination. He was reminded of what he had said in a recording and then gave evidence that he asked the accused what he had done to Mr Willis. and said the following: [156]

10. [171]

    Mr Marle said that, while he did not know precisely where Mr Stonestreet was during this conversation, he was within earshot at the time. Mr Marle said that the accused was walking around to different rooms and outside, going backwards and forwards. [157] He thought that he and Mr Stonestreet smoked another cone, maybe had a drink of water, and he “might even have made a cup of coffee”. [158] He and Mr Stonestreet sat in the lounge room and did not really do anything for a while. [159] He said that every now and then, Mr Stonestreet got up to look out the door and to see what the accused was doing. He could see the accused’s ute parked on the northern side of the drive next to the “gateway”, backed into the culvert, with the result that the back of the ute was level with the top of the bank. [160] He said he saw the accused with what he described as a “Supercheap trolley”, [161] a reference to the Supercheap Auto store chain. It was a removalist style trolley with two inflatable rubber wheels. [162] Mr Marle said the accused ordinarily used it for getting firewood as, due to a problem with his shoulder, the accused had trouble using a wheelbarrow. [163] The trolley was a metre away from the car. He saw the accused towing the trolley up from somewhere up on the road, down next to the ute, up to the top of the culvert, and then onto the back of the ute. He said he heard the accused “put it onto the ute”. [164] He saw “it” going into the ute, but he couldn’t see what “it” was. [165] Mr Marle then went back into the house. [166]

11. [172]

    Mr Marle said he heard the car idling for a while as the accused went backwards and forwards in between the house and outside. [167] Eventually, Mr Marle heard the ute drive off and, while in neutral and idling, roll down the hill with the park lights on, not accelerating again until its momentum had been lost. He said he then heard the ute going across the bridge. [168] Mr Marle said he then went back outside again and saw the lights going through the town in a westerly direction on Narrabri Road until the ute got to the top of the Narrabri Hill, when he could no longer see the lights. [169]

12. [173]

    Mr Marle estimated that the accused was away between two and four hours. [170] Mr Marle said that when the accused returned to the house, he, Mr Marle, was half asleep. He said he would get up and walk out to the landing every time he heard noises outside. He said that at some point, he went out and the accused had a fire drum near the verandah steps and he was putting something in it, burning stuff, [171] and stoking it from time to time. [172] Mr Marle asked the accused where he had been and the accused said he went fishing. [173] The accused then came back inside and went in and out of the house and was cleaning himself up. [174] Mr Marle said he went back to sleep after that. [175]

13. [174]

    Mr Marle said that the next day he got up in the morning and the accused and Mr Stonestreet were already up. Nothing much was said. [176] He said he went across town to work on a car with Timmy Morton. He thought it was Kerry Cooper’s birthday that day. Kerry Cooper was a good friend of Timmy Morton and another person “Ben” so they went around to their place in the afternoon. [177] He believes he went and stayed at his mother’s after that. [178]

14. [175]

    The version given by Mr Marle in chief, viewed in isolation, was reasonably coherent. It is, however, necessary to have regard to the evolution of that account. There is no suggestion Mr Marle discussed events of the night with anyone, the accused and Mr Stonestreet included, until September 2018. This was despite continuing to associate closely with both men.

15. [176]

    Mr Legg said that at a barbecue at his house on 1 September 2018, he told Mr Marle that the police knew what happened and told him “it would be in your best interest to tell them what you know”. [179] At that stage, Mr Marle said, to Mr Legg, that he fell asleep on the lounge and when he woke up “things didn’t seem right”. [180] According to Mr Legg, Mr Marle said he saw a bat which he described as “silver with red on it”. [181] Then on 17 September 2018, in excess of two weeks later, Mr Marle spoke to the police. Mr Marle said that Mr Legg told him about the bat and that it had a Tek screw in it, but that when he thought about it he remembered it was a bat with a hose clamp and not a Tek screw. [182] Mr Marle said he was taken to Moree by Mr King. [183] Mr King was, of course, the source of information provided to police in 2018, as a result of the disclosure by Mr Stonestreet.

16. [177]

    Mr Marle was asked by police what motivated him to come forward to which he responded “I don’t wanna go to jail for something I didn’t do. That’s not the sort of thing you wanna deal with”. [184] Shortly after this answer the following exchange took place: [185]

17. [178]

    Mr Marle then gave long answer recounting the central event. He gave an account broadly consistent with his subsequent evidence of the accused saying he was going to kill Mr Willis, and not thinking he was serious until he saw a bat. He continued and, whilst lengthy, it is helpful to set out what he then said: [186]

18. [179]

    The above account does not engender confidence in the reliability of the version ultimately given in evidence. To the extent that the account given by Mr Marle to police might appear reliable based on consistency with the evidence given in Court, it is limited to his reference to the accused indicating a willingness to kill the deceased and producing a bat prior to Mr Marle falling asleep. The difficulty with this aspect, however, is that, as will be seen, it was not supported by Mr Stonestreet.

19. [180]

    Even insofar as Mr Marle recalled a bat, he described it in the interview as an “old style wooden baseball bat” with a “woodgrain, with a, maybe a stain” on it “like dark coloured wood” a “wood stain colour”. [187] In his evidence, he said it was a “big brown wooden baseball bat”, with no staining and “all new lacquer”, [188] although it should be noted he described the clamp in both versions. These versions are again somewhat different to what Mr Legg says Mr Marle described, which was a bat that was “silver with red on it”. [189] Mr Marle, despite being a regular visitor to the accused’s house, said he had never seen the bat before, and had not seen anything kept at the accused’s front door. [190] These variations in Mr Marle’s evidence as to the bat are curious when regard is had to the evidence that establishes the accused did have a baseball bat. That is, even if Mr Marle was to be unreliable about what happened with the bat, it is odd that he was not able to recall a bat which actually existed.

20. [181]

    Other recantations in the 17 September 2018 interview, were to similar effect to the answer set out above. He described the accused and the deceased being out on the road and that he saw “like, scuffle in the weeds” and heard some “funny noises”. [191] He said it was “just a dull noise” and when asked what he put the noise down to he said, “I’m guessing, you know, the bad part of it?”. [192] He said there was a smell which, while he was “guessing it was blood”, it “didn’t smell exactly like blood” but was “worse than blood”. [193] He then said “I’m guessing it was something else” and when pressed said “I don’t want to be the one to say it out loud” and when pressed again said “it smelt like death, if you can understand that”. [194]

21. [182]

    Mr Marle was asked if he heard Mr Willis again and said that he had not, and he was not sure if he had just gone home. Mr Marle said he did not know what had happened but then asked the accused where Mr Willis was and was told by the accused that he was still out on the road. [195]

22. [183]

    In the interview of 17 September 2018, the police asked Mr Marle whether the accused had any blood on him when he saw him come back inside. Mr Marle said that he did not see any, although he did add that he thought he had something in his hand and said “I’m guessing it was the bat”. [196] He agreed however, that at the committal hearing he gave evidence that “after he murdered Darren” the accused was washing himself and he saw “a few specks on his face” but he did not know whether “it was blood or brains”. [197] He also said, in evidence at the committal hearing, that the accused looked at him and said, “you didn’t see anything” at which point he was “sure he had a few specks” of “something on his face”. [198] In a statement to police, he had said with respect to this point in time: [199]

23. [184]

    An important part of Mr Marle’s evidence was his evidence as to the accused lighting a fire in a drum after returning in the ute. If true, the inference is that the accused was destroying items with the potential to connect him to the murder of Mr Willis. In the interview, police asked Mr Male what he was able to tell them about a bonfire. He responded: [200]

24. [185]

    There are two significant aspects to this answer. Firstly, Mr Marle, at the time of the police interview, appears to have had no independent memory of a fire. Secondly, he seems to have dismissed any concerns on the basis of an acceptance that the accused went fishing. On Mr Marle’s account of what he saw and heard, it is inconceivable that he could have accepted that the accused went fishing. In a similar vein, he said he “wasn’t sure” what had happened, he “didn’t want it to be true”, and “[a]s far as [he] figured out, they’d had a talk… maybe swapped drugs”. [201] At other points in the interview he suggested he knew Mr Willis was dead. When asked what prevented him going out to help his friend on the road he said it was “the fact that Darren’s probably laying there dead”, [202] inferring that the same thing might have happened to him had he intervened. He gave a similar answer with respect to calling an ambulance. [203] In between these answers he said he did not call the police because he “wasn’t sure what had happened anyway” [204] but added that he thought he was involved because he was there and did not want to be associated with “it”. [205]

25. [186]

    With the possible exception of the involvement of Mr Stonestreet, Mr Marle did not suggest he did not tell the police all he knew in the interview on 17 September 2018. It is obvious from the vague and varying quality of Mr Marle’s account in the interview that he did not, at that time, recollect important matters of which he gave evidence at trial. For example, it is clear that the detailed recollection of the accused’s admissions to having hit Mr Willis in the knee, and then in the head taking off his ear, and then hitting him a third time and crushing his skull, was not present on 17 September 2018.

26. [187]

    And further significant aspect of the 17 September 2018 interview was that Mr Marle, contrary to his trial testimony, essentially wrote Mr Stonestreet out of events. He said that Mr Stonestreet “might’ve been there that night” but that “I just didn’t see him outside or anything” and that “[h]e might’ve come out of the bedroom after, out of the kitchen or somewhere, if I did see him”. [206] Mr Marle said that Mr Stonestreet knew he was going to the police and had told Mr Marle not to bring him (Mr Stonestreet) into it. [207] While Mr Marle may have been trying to protect Mr Stonestreet, is not clear why he would go to the police to implicate the accused but not Mr Stonestreet, who on Mr Marle’s later version was no more involved than himself.

27. [188]

    These versions suggest some plasticity in Mr Marle’s memory.

28. [189]

    In his evidence, Mr Marle said that the night in question occurred about 7 to 10 days before attending a Family Court mediation in Sydney. There was little doubt that the witness’ efforts to establish a relationship with his daughter was a matter of real importance to him. There was evidence that established that Mr Marle was in Sydney for family law proceedings on 3 December 2010 when consent orders were signed. [208] While there were trips to Sydney for the purposes of visiting the child, the only evidence of a court process related to this day. If, as Mr Marle recalled, the night he described pre-dated his attendance at court was correct, Mr Willis was still alive after the events on the road described by Mr Marle. Mr Marle also said the events he witnessed on the road occurred on the day before Kerry Cooper’s birthday. It was an agreed fact that Kerry Cooper was born on 21 August 1963, [209] with the result that his memory linking these events was clearly inaccurate.

29. [190]

    In his interview on 17 September 2018, Mr Marle also placed the event as having occurred prior to the court proceeding with respect to his child. However, he said that it was “a couple of days later” that he had to go to court, or that it was “roughly a few days or a week” before he went to court. [210] Again, there is no doubt that Mr Willis was alive after this time.

30. [191]

    As noted above, the deceased was a very tall man, based on police records, and weighed some 85 kg. As discussed above, there was evidence that the accused had suffered a shoulder injury in a work accident that had left him on workers compensation for some time. While, by December 2010, he had returned to work, his duties were generally confined to driving trucks and did not include manual labour. While there was no medical evidence as to the accused’s capacity to move Mr Willis’ body, it was generally acknowledged that he would have had considerable difficulty in doing so.

31. [192]

    As noted above, Mr Marle in his evidence referred to the accused obtaining a trolley. Mr Marle agreed that he had not referred to the trolley in his interviews with the police or in his statement of 9 March 2020. He said it took a few statements “to try and piece it all back together”. [211] He did maintain that he definitely told the police, [212] however, there was no record of any mention by him of the trolley until the committal hearing.

32. [193]

    There appears to have been no issue that it would have been difficult for the accused to get Mr Willis’ body into the back of the ute. Indeed, in recorded conversations between Mr Marle and Mr Stonestreet, there were discussions as to how he did it. Mr Marle asked Mr Stonestreet if he helped the accused which Mr Stonestreet denied. [213] In his evidence, Mr Marle agreed that it seemed difficult for the accused, with a bad shoulder, to get Mr Willis’ body onto the trolley and into the back of the ute but “as far as [he was] aware, that’s how he [did] it”. [214] In a recorded conversations with the accused, the accused asked Mr Marle “how the fuck can I get rid of one man by myself” to which Mr Marle responded “well [f]ucked if I know”. [215] Notably, despite trying to induce the accused to make admissions, Mr Marle did not suggest the use of a trolley.

33. [194]

    Also relevant to the disposal of the body was evidence given by Mr Marle with respect to the accused sharpening knives. Mr Marle was taken to his committal evidence in which he said that the accused was in and out of the house and he thought the accused was “taking things with him to dispose of Darren”. [216] In his trial evidence, it was put to Mr Marle that he did not have any recollection of what it was that the accused was doing, to which Mr Marle responded that he was “not used to explaining it this way” and that the accused “probably came in and got knives and all the butcher stuff to go and dispose of him”, to which he added “I don’t know”. [217] He was taken to his committal evidence in which he said he accused “had been sharpening knives every week for about a month and I never thought of that until afterwards”. [218] Mr Marle said in his committal evidence that the accused had a butcher’s table on his back landing. Mr Marle accepted he gave the following evidence at the committal: [219]

34. [195]

    Of course, the trolley later became the means by which, according to Mr Marle, the accused was able to load Mr Willis’ body onto the ute. Mr Stonestreet made no reference to the presence of any trolley. As to the possibility that the presence of knives and a butcher’s block, Mr Stonestreet agreed it sounded “a bit crazy”. [220] Mr Stonestreet had earlier agreed that Mr Marle sometimes said some “pretty bizarre things” [221] and that, when he wanted to, he could talk himself into a whole new reality. [222] Given the absence of any corroboration of Mr Marle’s evidence about the trolley and the quality of the evidence, including the failure to refer to the trolley prior to giving evidence, and the bizarre quality of some of the evidence as set out above, Mr Marle’s explanation for the disposal of the body cannot be accepted. As to whether it is a lie or fantasy it is not necessary to decide, although I am inclined to think it is the latter.

35. [196]

    Mr Marle began assisting the police after his first two interviews. [223]

36. [197]

    Mr Marle acknowledged he was having financial difficulties in 2018/2019. [224] Police gave him money on a number of occasions for fuel, alcohol or other purposes, while he was trying to gather information for them. [225] Between November 2018 and March 2019, he was given something in the order of $400 in amounts varying between $20 and $100. In cross-examination, he denied that he continued assisting so that the police officers would keep paying him. [226]

37. [198]

    When Mr Marle pleaded guilty and was sentenced for concealing a serious indictable offence, he was given a 10% discount for past assistance and a further 10% discount for his promise to give assistance in the future, including giving evidence at the committal hearings and at the trial of the accused. He understood he was required to give evidence in accordance with his statement or else he might be resentenced. [227]

38. [199]

    Mr Marle was also aware that on 20 June 2018, police issued a media release offering a $350,000 reward for information, [228] although there was no evidence he had any intention to claim the reward.

39. [200]

    As noted above, Mr Marle gave evidence of going into town to get supplies. He said that the accused usually bought 2-litre casks of Renmano wine. [229] He thought that the accused already had one in the fridge and bought another one. Mr Marle said he bought some XXXX Gold bottles. He then had one beer at Sportsman’s Hotel, two large bottles of beer at the accused’s house after that (the XXXX Gold bottles) and had a few of Mr Stonestreet’s and the accused’s Renmano wine as well as the evening went along. This was mixed with cola and consumed from big milkshake cup. He said he also had probably three to four “water bongs” (cannabis) in the early stages of the night. [230] He said they then had more drinks and more cannabis sometime later that night. [231] He accepted he was, unsurprisingly, “pissed and stoned”. [232]

40. [201]

    Whether it was the alcohol and drugs, or those matters in combination with other factors, Mr Marle’s memory was clearly affected. He agreed that when approached by police on 26 June 2018, he denied knowledge and denied having anything to do with Mr Willis’ disappearance. [233] He said he initially denied knowledge because he did not “want to be associated with [this incident] at the start” and he had to “think about it”, [234] and further that he did not have the information to properly process the events and he was also in denial. [235] When cross-examined, he agreed he had not spoken about these events until 2018 and described the memory as being laid “somewhere at the back of [his] mind completely unprocessed”. [236] He said that when he spoke with Mr Stonestreet about it for the first time it helped him put “more pieces of the jigsaw puzzle together”, [237] because some of the parts Mr Stonestreet mentioned made sense. [238]

41. [202]

    Mr Marle also suggested that he did not want to tell the police anything initially because he wanted to spend time with his daughter while she was young and he thought he would never see her again if he went forward to the police straightaway, [239] as he thought he would probably go to gaol for being present during the murder. [240]

42. [203]

    Some of what Mr Marle said about the state of his memory when interviewed by the police on 17 September 2018 has already been set out above. Additionally, Mr Marle told police “because of my bipolar and drinking I have some trouble sometimes, it might take me a little while to recollect”. [241] He said that if he drank too much, people could tell him that he had done things and he would believe what he was told even if it was not true. [242] He said that it was “part of bipolar” which meant that he did not have “an exact memory of stuff and I’m trying to work it all out” and that “sometimes it takes someone to jog a memory or tell me total bullshit so I remember what, when I drink a lot or smoke a lot”. [243] When Mr Marle was asked what he thought the accused was doing when he drove off, he said that he “thought about it” and that “[e]ven the next day, it was like a dream.” [244]

43. [204]

    On 12 October 2018, Mr Marle had a second video recorded interview, where he revealed more information he had remembered. He said he did this because it was not until talking to the investigators that he realised the importance of a lot of the information and started to think about it more. [245]

44. [205]

    Mr Marle’s initial denial is explicable on the basis that he was reluctant to disclose what he knew. From the time of his first interview with police in September 2018, however, Mr Marle was, according to him, cooperating with police. It is, however, clear that his account of what he witnessed evolved considerably over time. Some significant parts of his evidence, such as the use of a trolley to move Mr Willis’ body, are not grounded in reality. As I have already observed, this may be the result of Mr Marle telling a lie, or, as I have indicated, more likely, a fantasy created by him. With respect to this latter possibility, Mr Marle was clear as to problems he experienced with memory. In his evidence at trial, Mr Marle accepted that if people tell him something about what happened in the past, “it confuses the memory”, [246] but he maintained that he was able to identify whether what others said matched up with his own memory. [247] He accepted he had problems with his memory because of his bipolar and drinking. [248] These problems were exacerbated in the present case by the delay between the relevant events and Mr Marle’s attempt to revive his memories through the numerous discussions, interviews, and court proceedings from 2018 onwards. Mr Marle’s motive in providing a version which largely exculpated him, and maintaining that version, further impact his reliability. Parts of Mr Marle’s evidence, such as his evidence with respect to the trolley, underscore the difficulty in relying on any part of what he said.

45. [206]

    Mr Marle said his memory of the night was quite clear and that it was only his reluctance to deal with it that made it unclear. [249] It may well be that Mr Marle did have what appeared to him to be a clear memory in his own mind. For the reasons discussed, however, I am unable to regard any such memory as reliable. Of course, Mr Marle’s evidence is to be considered in the context of all the evidence in the case. It is, however, capable of adding little if anything to that other evidence.

46. [207]

    Having regard to the issues in his account, the real value of Mr Marle was probably based in what he could elicit from other suspects, namely the accused and Mr Stonestreet during the investigation stage. This is discussed below in the context of the recorded conversations.

Mr Stonestreet

1. [208]

   Mr Stonestreet was, with Mr Marle, the other primary witness in the Crown case. In fact, he was the only person who claimed to have seen the accused strike the deceased with a bat, Mr Marle having given evidence suggesting this, but never actually claiming to have seen the blows inflicted. As with Mr Marle, it is necessary to closely consider Mr Stonestreet’s evidence.

2. [209]

   Mr Stonestreet lived in Bingara for a year at the age of 17 in about 1990 and became acquainted with the accused. [250] He then lived in Brisbane for about 18 years, before returning to Bingara for the first time in around 2008 at the age of 36 for a 4-week holiday. During that time, he commenced a relationship with Ms Stevenson who lived in Bingara and, as a result, did not return to Brisbane. [251] He was offered work by Mr Angus Grant at Wendouree to spray weeds. [252] He lived with his sister at first and then, in 2009, Mr Angus Grant offered him a property to live on at Doonkami, around 30km out of town, where he lived alone. [253] Mr Stonestreet said he would come into town somewhere between every weekend and every third weekend and would occasionally stay at the accused’s home. [254] After he had decided to stay in Bingara, the accused drove Mr Stonestreet back to Brisbane in his ute to retrieve some furniture from Brisbane which was then stored at the accused’s house, for which Mr Stonestreet paid the accused around $50/week. [255]

3. [210]

   Mr Stonestreet regarded the accused as one of his “closer mates”. [256] It appears they remained friends after the alleged events in 2010 until they had a falling out in January 2018. Mr Stonestreet said the accused had come to his house asking him for $50 he said he was owed. According to Mr Stonestreet, despite him having the money in his hand, the accused said Mr Stonestreet was being a “smartarse” and punched him in the mouth. [257] There was no issue that there was a significant physical fight between the two. Photos of the accused’s injuries were tendered by the defence. [258]

4. [211]

   Mr Stonestreet does not appear to have had any real relationship with Mr Willis. He said there was an occasion in 2009 when he introduced a third person to Mr Willis at the Sportsman’s Hotel when, “for some unknown reason” [259] , and apparently without warning, Mr Willis punched both Mr Stonestreet and his companion in the mouth. Mr Stonestreet said Mr Willis was “always hitting somebody or arguing with somebody”, [260] although the unprovoked nature of this attack appears to have been something of a surprise. Mr Stonestreet, apparently as some form of retribution, drove past Mr Willis’ house later that night and threw a bottle at his window. [261]

5. [212]

   Mr Stonestreet placed the relevant events as having occurred on 10 December 2010. Mr Stonestreet’s employment out of town, together with the fact that it appears he was planning to stay with the accused, suggest he was giving evidence of events which took place on a Friday. He said work would have finished at 5 or 6pm and it took 30 to 40 minutes to get into town. [262] In cross-examination, he said he probably went to the accused’s house first.

6. [213]

   Mr Stonestreet said that he, the accused, and Mr Marle went to the Sportsman’s Hotel just before 8:00pm where they stayed for a couple of hours. [263] He did not recall where they met up with Mr Marle. [264] Nor did he recall a trip to obtain supplies, [265] including obtaining any takeaway alcohol, prior to attending the Sportsman’s Hotel. [266]

7. [214]

   Mr Stonestreet said he had approximately four stubbies at the Sportsman’s Hotel, [267] but later suggested it was “half a dozen”. [268] In cross-examination, he said he and the accused were drinking in the beer garden at the rear of the hotel and Mr Marle arrived at some point. [269] Mr Stonestreet recalled seeing Mr Willis in the beer garden at the back and in the TAB room at some point. [270]

8. [215]

   Mr Stonestreet thought there was a Council meeting at the Sportsman’s Hotel on that night, and that the accused was involved in this meeting, together with another 5-10 people. [271] Mr Stonestreet agreed it may have been the Bingara Social Club Council Christmas party, [272] which, it will be recalled, was on 10 December 2010 (consistent with what Mr Stonestreet said as the date).

9. [216]

   I note that there was also a Gwydir Shire Counsellor’s party on 18 December 2010. [273] There are a number of reasons to think this was not the night referred to by Mr Stonestreet, the principal among which is that it was held at Upper Horton and not in Bingara. Further, Mr Willis had received a Centrelink payment on 17 December 2010 and had not, contrary to his custom, withdrawn it, suggesting that he was dead by, at least, some time on 17 December 2010.

10. [217]

    Mr Stonestreet said that he, Mr Marle, and the accused returned to the accused’s house at around 10pm where they continued drinking and smoked cannabis through a bong. [274] He did not recall having any dinner. Contrary to the evidence given by Mr Marle, he said there was no conversation in which the accused said he was planning to kill Mr Willis. [275] Nor did he recall the accused producing the bat inside the house. [276]

11. [218]

    Mr Stonestreet said that at around midnight, he heard dogs barking out the front. [277] He said that at this point in the night, he was mildly drunk or merry but not “drunk, drunk”. [278] He said the accused walked out the front to see who or what was there and he, Mr Stonestreet, followed behind him. [279] They proceeded to the gate side by side while Mr Marle was behind them on the verandah. [280] According to Mr Stonestreet, there was a floodlight that shone out towards the road lighting up the driveway. [281]

12. [219]

    Despite walking behind him, Mr Stonestreet did not see the accused stop to pick up a bat on the way out of the house. [282] He said he was looking at Mr Willis or the dogs and not focusing on accused. [283] Mr Stonestreet said the dogs were barking at the deceased, who was on the road outside the front of the gate, while he and the accused were near the gate on the property side. [284] Mr Stonestreet said he was looking at Mr Willis with the accused to his left. [285]

13. [220]

    Mr Stonestreet said that the accused and Mr Willis started arguing and Mr Willis was also yelling at the dogs. Mr Stonestreet said that it was only when they got to Mr Willis that he saw that the accused had an “old, brown, worn-out baseball bat” in his hand “leaning against the ground”. [286] It was a bat he had seen a couple of times before. [287] He described it as “a bit frayed and cracked [it] had a steel radiator clamp around it to stop it from splitting”. [288]

14. [221]

    Mr Stonestreet said Mr Willis addressed him, saying “[f]uck off Robbie, it’s got nothing to do with you”. [289] Mr Stonestreet said he did not recall saying anything to Mr Willis to prompt this, [290] although it might be thought his presence with the accused suggested a readiness to intervene. I pause to note here that Mr Stonestreet was also a large man. Mr Stonestreet said that, as a result of what Mr Willis had said, he turned around and walked back towards the gate, but that he then turned back around and saw the accused hitting Mr Willis in the belly with the bat. [291] He said Mr Willis “bent over a bit, holding his belly” and the accused “hit him in the head with the bat” on the “left-hand side” “near the temple or ear”. [292]

15. [222]

    Mr Stonestreet said Mr Willis was lying on his right side and was not moving. [293] He said it looked like there was blood coming out of the side of his left ear, which was “facing up”. [294] There was a white plastic bag that he had been carrying which was lying next to him. [295]

16. [223]

    Mr Stonestreet said he looked at Mr Willis, and “sort of shit [himself], in a way” and went back inside. [296] He said Mr Marle was standing at the front of the house and also walked inside. He said the accused then walked inside and Mr Marle said something like “[w]here’s Darren”, [297] to which the accused responded, “laying on the road”. [298] Mr Stonestreet said he sat down and got another drink. He said he felt “pretty screwed up”. [299]

17. [224]

    Mr Stonestreet said that he, the accused, and Mr Marle were all in the big lounge room. [300] He said the accused then went out to his car, the yellow ute, and from the lounge room Mr Stonestreet said he heard (but did not see) the accused, reverse out and drive the ute towards the gate, where he heard the car idling for a few minutes before driving off. [301]

18. [225]

    Mr Stonestreet said he and Mr Marle sat drinking for a couple of hours and then the accused drove back into the car port. [302] While he was inside, Mr Stonestreet noticed the accused light a fire in a 44 gallon drum, located 8 to10 metres from the house and 3 metres from the garage, out in the middle of a little bare patch he had in the garden. [303] He said he could see the reflection of the flames through the house, [304] but did not see what was burning. [305] He did not recall Mr Marle going outside during this period. He said he and Mr Marle sat there while the accused was outside for another hour “burning whatever he was burning” [306] and then thought they might have gone to sleep, although he was not sure stating that “it was pretty close to daylight by then”. [307]

19. [226]

    Mr Stonestreet recalled that that morning he asked the accused where he had been. He said he thought the accused said the Four Mile, which is a fishing spot located, as it happens, about four miles from Bingara at a creek that flows into the Gwydir River. [308]

20. [227]

    Mr Stonestreet said he did not see Mr Willis again after this day. [309]

21. [228]

    As has been observed above, Mr Stonestreet, on his own account, said nothing about the events until his disclosure to Mr King some eight years later. It will be recalled that Mr King said that, without any apparent prompt, Mr Stonestreet told him that he, Mr Stonestreet, had been holding something in for years and that he knew “about the murder of” Mr Willis. [310] This occurred shortly after Mr Stonestreet’s falling out with the accused. With respect to Mr Stonestreet’s first account, it will be recalled that Mr King’s first report to police of what Mr Stonestreet had told him, referred variously to a bat, but also to an axe or pick handle, in each case with a protruding screw. Mr Stonestreet denied having said anything about an axe handle or a pick handle. [311] He said he may have referred to the item having a screw in it, and agreed that a Tek screw and a hose clamp look very different. [312] While there is some uncertainty as to what Mr King told the police, all versions indicated the item had a screw in it, suggesting a variation in Mr Stonestreet’s account, at least, in this respect.

22. [229]

    Subsequent to his disclosure to Mr King, Mr Stonestreet became aware that police wanted to speak with him and discussed this fact with others. In recorded conversations with people such as Ms Stevenson, he did not suggest he had any knowledge of the relevant events. [313] He similarly denied any knowledge of the events in a telephone call with police on 6 June 2018. [314] Detective Senior Constable Aslin spoke to Mr Stonestreet in person on 22 June 2018 and informed him he was investigating the disappearance of Mr Willis. Mr Stonestreet told him that he did not know anything and said that “if I did I would tell yas”. [315] Detective Senior Constable Aslin recorded that Mr Stonestreet appeared nervous and was shaking. [316]

23. [230]

    Mr Stonestreet spoke to Mr King on 6 July 2018, [317] concerned about the investigation. He confirmed that he was sweating and shaking when police spoke to him. He told Mr King “I’m denying everything, I don’t know shit” [318] which, in context, is to be understood as a lie. In other parts of the call, he confirmed that the only people that knew about what had happened were himself and Mr Marle, and that the only person he had told was Mr King. [319] Mr Stonestreet told Mr King in this call that the accused had told him the next day that he, the accused, had gone to the “4 mile”. [320] He told Mr King that he did not have proof so “if they say I’m involved I’m fucked, 10 years in gaol”. [321] Mr King said that he still could not work out how the accused could have got the body onto the ute by himself, to which Mr Stonestreet responded “no he’s a fucking strong cunt when he wants to be”. [322] In a further recorded conversation involving Mr Stonestreet and Mr King on 8 July 2018, it was at least implicit that Mr Stonestreet had seen the accused hit Mr Willis with the bat. In a further call between Mr King and Mr Stonestreet on 8 July 2018, Mr King asked what Mr Stonestreet’s thoughts were at the time, and he responded, “I thought how could you fucking do that man”. [323]

24. [231]

    Mr Stonestreet agreed that he had spoken to police on 12 July 2018 and he again denied any knowledge with respect to Mr Willis’ disappearance. There may be some doubt about this as there was no evidence given by police of speaking to Mr Stonestreet that day. There was, however, evidence that Mr Marle denied any involvement when spoken to on 12 July 2018, suggesting the leading question to Mr Stonestreet may have lead him into error.

25. [232]

    On 17 September 2018, [324] Mr Marle spoke to Mr Stonestreet and told him that he was going to go and speak to the police (which he did, resulting in his lengthy recorded interview that day). Mr Marle said that the police knew that Mr Marle had told Mr Legg that he “remembered something about a bat” [325] and that he had been thinking about it and “got a few memories back”. [326] Mr Marle said the “cats outta the bag” [327] , to which Mr Stonestreet responded “yeah but I wasn’t there”. [328] He later asserted he had proof that he was out at Doonkami at the time. [329] This is obviously inconsistent with the concerns Mr Stonestreet expressed to Mr King. Arguably, Mr Stonestreet’s responses are consistent with him not wanting to assist Mr Marle’s memory, and further, to encourage Mr Marle not to speak about him with police. So understood, they do not necessarily undermine Mr Stonestreet’s evidence.

26. [233]

    On 8 March 2019, Mr Marle was actively assisting the police, and engaged Mr Stonestreet in a recorded conversation. [330] In this conversation, Mr Marle expressed his concern to Mr Stonestreet about the ongoing investigation and said he does not know “what I’m supposed to say to defend you”. [331] Mr Stonestreet told Mr Marle that he walked “out there and [the deceased] said, ‘This has got nothin’ to do with you Rob, go back inside’”. [332] He said he walked back inside and saw Mr Marle. Mr Marle attempted to fill Mr Stonestreet in, saying “Bruce must’ve hit him or somethin’”, [333] and then referred to the accused having hit Mr Willis in the knee and in the head. Mr Stonestreet maintained that he was not outside and there was a discussion of the accused leaving in his ute and of the fire. It is apparent that Mr Stonestreet and Mr Marle had quite different memories of where the fire was located. Mr Stonestreet was adamant with Mr Marle that he did not remember seeing a bat. [334] Mr Stonestreet insisted that he did not know “personally exactly what happened” [335] and that while, he and Mr Marle might have been there, “we only heard about it, but we’ve got no proof”. [336] Mr Stonestreet told Mr Marle that what he will say is that “you and me were drunk as skunks, Bruce went outside, had a fight with fucken’ Spaz, I don’t really know what happened, but fuckin’ next weekend I found out that fuckin’ Spaz was missin’”. [337] Mr Stonestreet stressed to Mr Marle that they need to stick to saying that they did not see anything. [338]

27. [234]

    Mr Marle engaged Mr Stonestreet in a further conversation on 14 March 2019. [339] In that conversation, Mr Marle referred to seeing the lights of the ute on either the Narrabri Road or the Elcombe Road, to which Mr Stonestreet responded that he has no memory. Mr Stonestreet again maintained to Mr Marle that while, “you and me might’ve been there, we never witnessed anything, mate”. [340]

28. [235]

    The same day, 14 March 2019, [341] Mr Stonestreet spoke to Mr King who apologised for having broken Mr Stonestreet’s confidence in speaking to the police. Mr Stonestreet responded, “it’s all cool, I’ll fuckin see you in five years man”. [342] This suggests a genuine concern on the part of Mr Stonestreet with respect to his liability in relation to events surrounding Mr Willis but falling short of guilt of murder.

29. [236]

    On 18 March 2019, [343] Mr Marle again tried to obtain admissions from Mr Stonestreet. In this conversation, Mr Marle told Mr Stonestreet that Mr King had told him that he, Mr King, had been told by Mr Stonestreet that Mr Stonestreet, was out on the road and “you seen it happen, you seen the blood fuckin’ everything”. [344] Mr Stonestreet insisted that Mr King was lying. Mr Stonestreet insisted he had not told Mr King anything, which appears to be untrue. Mr Marle attempted to have Mr Stonestreet adopt aspects of his version. Despite Mr Marle’s efforts, Mr Stonestreet maintained he was not outside, [345] and that he had no recollection of a bat. [346] Mr Stonestreet also insisted he had no recollection of matters that had become features of Mr Marle’s account by this time, such as the accused saying “there’s not going to be a tomorrow” [347] or the accused reporting having hit Mr Willis to the knee, then taken his ear off and then hit him in the head.

30. [237]

    On 19 March 2019, [348] Mr Marle again engaged Mr Stonestreet in conversation. Mr Stonestreet again denied telling Mr King that he saw Mr Willis on the road.

31. [238]

    In a further conversation with Mr Marle on 6 June 2019, [349] Mr Stonestreet repeated his account that, upon being told by Mr Willis it had nothing to do with him, he went inside. He said he was aware there was a fight between the accused and Mr Willis, but that Mr Willis was alive when Mr Stonestreet went back inside the house. [350]

32. [239]

    As previously noted, on 25 October 2019, Mr Stonestreet was arrested and charged with concealing a serious indictable offence and was remanded in custody. He took part in a recorded interview with police the next day on 26 October 2019. Mr Stonestreet told police that he was at the accused’s house with the accused and Mr Marle. [351] He said the accused went outside, there was a “blue” between the accused and Mr Willis and he, Mr Stonestreet, went back inside as he did not want to have anything to do with it. [352] When asked if the accused had anything in his hands, Mr Stonestreet said that “he did have a few bats laying around” but he did not know. [353] He said the fight was verbal for a while and then he heard a few punches. [354] He said that at one point he saw Mr Willis sitting on the ground. Mr Stonestreet also said that he “probably started drinking again” and that the accused left in his car. [355]

33. [240]

    Mr Stonestreet participated in a further interview with police on 2 April 2020. On this occasion, Mr Stonestreet told police he saw the accused with a bat. He said he turned around to walk back inside when he heard a “big thud” and he then turned around to see Mr Willis laying on the road. [356] He said he walked over and saw no movement and then “just thought fuck this, I’m turning around, and I walked back inside the house”. [357] This account developed during the course of the interview, as discussed below.

34. [241]

    Mr Stonestreet, while maintaining he had given truthful evidence, accepted that he had repeatedly lied in relation to the event. His evidence was that he had adopted a “concrete mindset” [358] and had lied, not only to the police and to Mr Marle in the recorded conversations, but also to his mother and Ms Stevenson, and when sentenced after pleading guilty to concealing the murder, to the presiding judge. The result is that, having said nothing for eight years between 2010 and September 2018, he told Mr King that the accused had struck Mr Willis with an implement, and then consistently denied this version to all but Mr King until 2 April 2020.

35. [242]

    With respect to the police interview on 26 October 2019, he said that he left out that the accused hit Mr Willis with a bat because he “didn’t want to be the main person that seen it”. [359] He also said that he had just started making friends in town and thought people would look at him differently if he disclosed what he knew. [360] He was unable to explain why he did not call an ambulance other than saying that he “freaked out at the time”. [361]

36. [243]

    Even on 2 April 2020, having decided he wanted to “get it off [his] chest”, [362] he did not initially suggest that he had seen the accused strike Mr Willis with the bat. He maintained, as he had previously said, that when Mr Willis said, “it’s got nothing to do with you” he turned around and started to walk away and then heard a “big thump” and then turned around to see Mr Willis lying on the road. [363] Despite clearly suggesting he had not seen the impact, he was asked if he saw “Bruce hit Darren with the bat”. [364] He then answered somewhat ambiguously “Yeah, I seen him swingin’ at Darren”. [365] He was asked “whereabouts did you see him swing at” and he said he saw the accused swinging the bat at Mr Willis between the shoulders and the head. [366] When asked “did you see that connect?” he responded, again somewhat ambiguously, “Yeah, I might’ve, did see it connect”. [367] Despite not having clearly indicated that he had seen a blow to Mr Willis’ head, Mr Stonestreet was asked “what side of the head did you see it connect with?”. [368] He responded that it “[w]ould’ve” been the accused “swingin’ I’m pretty sure right-handed style” and “maybe hittin’ Darren on the left side”. [369] He said Mr Willis “just dropped like a bag of shit”. [370] He said he was “pretty sure” he was dead. [371]

37. [244]

    It can be seen from the above that Mr Stonestreet’s ultimate version of seeing the accused strike Mr Willis with a bat to the head, involved something of an evolution. It is important, in this context, to understand the circumstances in which Mr Stonestreet found himself on 2 April 2020 and the pressures upon him. He had been in custody since his arrest, by that time, a period of approximately six months. The following evidence was given in cross-examination: [372]

38. [245]

    Mr Stonestreet was ultimately granted bail on 12 August 2020, four months after his second interview, having spent some 10 months in custody. On 14 May 2021, he received a sentence of 6 months to be served by way of an ICO. While there does not appear to be specific evidence before me as to any discount applied to Mr Stonestreet’s sentence in exchange for his cooperation, when he was sentenced he gave evidence on oath before the sentencing judge and agreed that he was “still prepared to give evidence”. [373] Given his motivation for cooperating on 2 April 2020, and his evidence on 14 May 2021 before the sentencing judge, whilst it is somewhat unsatisfactory, I would infer that he did receive a discount, and he understood he could lose that discount if he did not continue his cooperation.

39. [246]

    Further to the above, not only did Mr Stonestreet’s version evolve in the course of the record of interview on 2 April 2020, it underwent further evolution in his evidence at trial. It will be recalled that Mr Stonestreet’s evidence before me was that the accused hit Mr Willis to the stomach with the bat, causing him to bend over and he then hit him to the head causing him to fall. This was not the version given in the recorded interview, even when Mr Stonestreet reached the point stating that he saw a blow to the head. Mr Stonestreet accepted he did not say anything about Mr Willis being hit in the stomach in the interview. [374]

40. [247]

    While less significant than the matters referred to above, it should also be noted that Mr Stonestreet said in his evidence that he had a prior familiarity with the bat he said was produced by the accused. [375] Despite the centrality of the bat to the account given by Mr Stonestreet, he accepted that he had not, in his previous accounts, suggested the bat was an item he had seen before. [376]

41. [248]

    Mr Stonestreet’s consumption of alcohol and drugs cannot be left out of the equation. Despite Mr Stonestreet’s minimising the impact of any intoxication of upon him, there is no doubt that he had consumed a considerable amount of alcohol and additionally consumed cannabis. It is not possible to know the extent to which this has affected his reliability.

42. [249]

    There are aspects of Mr Stonestreet’s evidence that suggest it may be reliable, or at least an honest belief on the part of Mr Stonestreet with respect the central kernel of his account. While he had remained silent between 2010 and 2018, his disclosure to Mr King was in the context of his falling out, and physical fight, with the accused two weeks earlier. He agreed the disclosure was triggered by the fact he was angry with the accused. [377] However, the evidence strongly suggests that he expected Mr King to maintain confidentiality. This being the case, he did not anticipate his disclosure would result in repercussions for the accused, at least beyond his relationship with Mr King. Contrary to the accused submission, the evidence does not suggest an act of revenge. Whilst Mr Stonestreet denied having witnessed the event to Mr Marle, conversations engaged in with Mr King, and recorded by the police, capture what appear to be unguarded utterances of Mr Stonestreet which support the thesis he was lying to Mr Marle (and to others) and had, in fact, made a genuine disclosure to Mr King.

43. [250]

    It is, of course, necessary to have regard to all relevant matters before relying on the evidence of Mr Stonestreet, even in conjunction with other evidence. The high point of Mr Stonestreet’s evidence is his prior disclosure to Mr King, in circumstances where there does not appear to have been anything to gain, noting that it is, of course, not for the accused to prove Mr Stonestreet’s motivations. But even then, it is doubtful that there is a consistency with respect to the implement described to Mr King and that ultimately settled upon by Mr Stonestreet (in circumstances where the police, by that time, had Mr Marle’s version of a baseball bat with a hose clamp).

44. [251]

    As has been described above, any further search for consistency with respect to this central aspect of the account is frustrated by the evolving account given by Mr Stonestreet. When this is coupled with the circumstances in which he told police he saw the accused strike the deceased, including his desire to gain, and keep, a benefit, there are necessarily grave concerns with respect to any reliance on Mr Stonestreet’s evidence.

45. [252]

    There is a further difficulty with the evidence of Mr Stonestreet. It is highly likely, in my view, that Mr Willis was dead by sometime on 17 December 2010. I base this on the evidence that a Centrelink payment was received into Mr Willis’ bank account on that day and, contrary to his usual habit, Mr Willis did not withdraw it. One aspect of Mr Stonestreet’s evidence which appeared reliable was his tying of the event to a Friday night. Mr Stonestreet was clear that due to his work commitments his visits to Bingara were on the weekend, either “every weekend or every second, third weekend, just depending on how the work was”. [378] Additionally, on this particular occasion, it is clear he was planning to stay the night at the accused’s house. This would not have been likely to be the case had it not been the weekend. This, in turn, marries up with Mr Stonestreet’s evidence of there being a Council event at the Sportsman’s Hotel that night, firmly placing his account of events on Friday 10 December 2010. Given the unwithdrawn Centrelink benefit deposited on 17 December 2010, it does not appear that the relevant Friday that Mr Stonestreet is said to have witnessed could have been the following week, 17 December 2010 (or thereafter).

46. [253]

    The Crown did not, however, call into question the evidence to the effect that Mr Willis was still alive after 10 December 2010 and possibly until at least 16 December 2010. Given that Mr Stonestreet was, on a sound basis, committed to a Friday, it is difficult to reconcile Mr Stonestreet’s evidence with these later sightings of the deceased.

47. [254]

    I am, as a result of the above analysis, circumspect in accepting Mr Stonestreet’s evidence. I would require reliable independent evidence before doing so.

The recorded conversations relied on by the Crown as implicating the accused

1. [255]

   As has been discussed, there are serious questions with respect to the reliability of Mr Marle and Mr Stonestreet. Of course, their evidence is not to be considered in isolation. The recorded conversations involving the accused form a further and significant part of the Crown case. It was not submitted by the Crown that any of the recordings or the recordings taken together could prove the guilt of the accused. Rather, the submission was that the recordings, together with all of the other evidence in the case, would satisfy me beyond reasonable doubt of the accused’s guilt. It is necessary then to consider the recordings relied upon by the Crown, and any other recordings I regard as probative of guilt, or, conversely, any recordings tending to cast doubt on the accused’s guilt.

2. [256]

   As has been discussed, there is no issue that there had been significant animosity between the accused and Mr Willis. The accused’s own utterances in the course of the recorded conversations confirmed this. It does seem, however, that they maintained a relationship.

3. [257]

   In a recording on 18 May 2018, [379] the accused, in a conversation with Ms Holder, is heard complaining about Mr Willis borrowing money. In the recording, the accused said that Mr Willis had asked him for $800 for a new windscreen which the accused refused to pay. (That the deceased was in the process of obtaining a new windscreen appears to fit with the evidence of Mr and Mrs Johnson). The accused was recorded saying that Mr Willis would regularly ask for things like bread, milk, sugar, coffee, and tea every week and would regularly ask the accused to drive him places. The accused said he had told the police he was “ropeable with the cunt in the end”. [380] He said that people described them as fighting like brothers. The accused also said that while he may have stood up to Mr Willis, he was “petrified” of him and there was “no way I’d ever fuckin’ take him on. Never”. [381] He described Mr Willis as “just a fuckin’ bully”. [382] The accused also said that it “took me ages, ages for me to fuckin’ start standing up to him”. [383] The accused said, “I lost it at him, but fuck me, I didn’t kill the cunt”. [384]

4. [258]

   In recording on 10 December 2018, [385] the accused, in a conversation with Morgan Trotter, said: [386]

5. [259]

   It was not suggested by the Crown that the “it” in the above referred to anything other than threatening Mr Willis. The accused said Mr Willis was shaking his fence like he was going to snap it. In this same recording, the accused said, “I killed Spaz”, [387] however, this was similarly not relied upon by the Crown as an admission. As the Crown accepted, it is plain from the context that the accused was not intending his comment to be taken seriously, but rather, he was speaking facetiously, comparing his situation, being investigated for murder, with another, unrelated, case where witnesses had come forward years after the crime.

6. [260]

   In a conversation on 19 December 2018, [388] the accused said that he did not “give a fuck” [389] and also said of Mr Willis, “he’s a good thing out of the road, he’s just nothin’ but an asshole and a mean fucking man”. [390]

7. [261]

   The above recordings confirm what, as noted above, is not in dispute, which is that there was significant animosity between the accused and Mr Willis. It is also of note that, despite the investigation, in this conversation and more generally (including conversations with the police), the accused made no attempt to play down his dislike of Mr Willis. Nonetheless, there is evidence that the accused had a motive to attack Mr Willis based on that dislike.

8. [262]

   This category of evidence is central to tying together the key pillars of the Crown case.

9. [263]

   On 17 May 2018, [391] the accused was recorded in conversation with a person named Sam Peterson. In that conversation, Mr Peterson claimed that he saw Mr Willis the night he went missing. The accused told Mr Peterson that he did not know when Mr Willis disappeared, [392] although he said he did recall his last words to Mr Willis, which he said were, “I’m sick of you, get fucked”. [393] The accused said that this happened at “the top pub” [394] (which was a reference to the Sportsman’s Hotel [395] ) and that there was “some Shire do”. [396] He said “I dunno if it was someone’s retirement or whether it was a shire fuckin’ yearly party or what”. [397] This would tend to suggest an exchange at the Sportsman’s Hotel on 10 December 2010. Given the unquestioned sightings of Mr Willis after that date, this does not advance the Crown case.

10. [264]

    In a recording on 13 July 2018, [398] the accused is recorded telling an unknown person that the detectives had visited him the previous day in relation to his suspected involvement in the disappearance Mr Willis. His companion said “[f]uckin’ no one knows” to which the accused responded “I don’t give a fuck … I’ve got nothin’ to worry about”. [399] The Crown submitted this last statement was consistent with the accused’s belief in the effective disposal of the deceased’s body. This view would require me to presume guilt, rather than to, as I must, presume innocence, subject to the Crown discharging its onus to rebut that presumption. The most that can be said is that the utterance is not necessarily inconsistent with guilt.

11. [265]

    Mr Marle engaged the accused in a recorded conversation on 19 December 2018, [400] one aspect of which has been discussed above in relation to the accused antipathy to Mr Willis. Mr Marle was actively cooperating with police by this time. The subtext to the conversation appears to be the belief that Mr Stonestreet provided information either to the police or which found its way to the police (the latter being true) leading to the investigation. Mr Marle sought to engage the accused saying “it’s only a matter of time Bruce” [401] to which the accused said “I’ve done nothin’ wrong” [402] and asked Mr Marle rhetorically, “how the fuck can I get rid of one man by myself?”. [403] The accused continued, “[a]s far as I’m concerned Rob knows more than what I fuckin’ do”. [404] The accused insisted that he had nothing to do with the deceased’s disappearance and reiterated, “if Rob wants to open his mouth [he’s] the one that’s got everything to do with it … Robs the one that done it”. [405] Later in that recording the accused says, “as far as I know the cunt’s still alive, fuckin’ hidin’ somewhere”. [406]

12. [266]

    In a continuation of the above conversation, [407] Mr Marle continued to press the accused by suggesting that Mr Stonestreet told the police what happened, and the accused continues to insist that “he’s the one that done it. He’s the one that fucked up … [his] fucking problem”. [408] When Mr Marle said “I’m just as guilty as him and you” [409] the accused responded “Nuh, me and you aren’t guilty. We’ve got nothin’ to worry about, neither of us, neither of us have got anything to worry about”. [410] The accused then suggested that anyone blaming him is after the reward. [411]

13. [267]

    The accused goes on to say, “I know exactly what’s happened mate and I don’t give a fuck”. [412] This was relied upon by the Crown as a significant admission. It is important however, to put this in its proper context. The first aspect of that context is that the accused has, to this point of the conversation, consistently denied involvement in the death of Mr Willis. Secondly, at this point in the conversation there had been a discussion of a person called Gary having had a fight with Mr Willis. It is important to then look closely at the relevant exchange which was as follows: [413]

14. [268]

    Read in context, it is apparent that the accused’s knowledge of “what happened” refers to an event in which “Gary” was going “back to get” Mr Willis and Mr Stonestreet was going to help. This is consistent with what the accused said a short time later. When Mr Marle then suggested the accused needed to cover his bases, he said: [414]

15. [269]

    Having regard to the above, I do not regard the words “I know exactly what’s happened mate” as an admission. Indeed, perhaps the most noteworthy aspect of this conversation is that the accused put forward a version which, on the Crown case, he must have known that Mr Marle would know was not true.

16. [270]

    The Crown further relies on the accused telling Mr Marle “you’ve got nothing to do with it Marley”. [415] On one view, if the accused was not involved, he would not know whether Mr Marle had anything to do with Mr Willis’ disappearance or not. However, the accused had spent a lot of time with Mr Marle in 2010 and knew him well. Additionally, Mr Marle was repeatedly expressing his concerns about his involvement. The utterance is, at least, equally consistent with an innocent explanation as a guilty one. It is consistent with either the accused’s belief that Mr Marle had nothing to do with it, or an attempt to provide some reassurance to Mr Marle in the context of his apparent stress.

17. [271]

    On 22 February 2019, [416] Mr Marle had a further conversation with the accused where Mr Marle pointed to an article in a newspaper and raised a concern that a ute had been referred to in the paper in connection with Mr Willis’ death. [417] It appears from the conversation, the ute was consistent with, or traceable to, that owned by the accused in December 2010. Mr Marle asked the accused what is going to happen, to which the accused said “nothin’”. [418] When pressed as to how he can say nothing will happen, the accused responded, “[c]ause I’ve done nothin’”. [419] There appears to be a suggestion from Mr Marle that there was blood in the ute, possibly based on information from Mr Legg, to which the accused responded, “he’s got no idea Marley there was no blood at all”. [420] While this might suggest knowledge of whether Mr Willis’ body had left blood on the ute, it is also consistent with the accused’s confidence that an examination of the ute would not implicate him.

18. [272]

    Mr Marle continued to express his concerns to the accused saying “I had fucking nothing to do with it apart from being here” and that, as a result “it’s me in gaol for fucking 25 years”. [421] The accused responded by telling Mr Marle to “shut up”. [422] Mr Marle attempted to increase the pressure on the accused saying “what happens when Rob gets in there” [423] suggesting the combination of police knowledge of the ute and the information from Mr Stonestreet will create a significant problem. The accused responded: [424]

19. [273]

    While the above, on its face, suggests knowledge of a particular night, it is also consistent with what had been something of a consensus, that the relevant night was 10 December 2010. Indeed, in his interview with police, the accused answered questions based on an assumption that Mr Willis disappeared on 10 December 2010, to the point where the interviewing police officer told him to stop fixating on that date. [425]

20. [274]

    The conversations discussed immediately above add little to the prosecution case. There are, however, further conversations that require closer analysis.

21. [275]

    In the conversation on 22 February 2019 referred to above, [426] Mr Marle continued to raise his concerns, particularly, the impact of the investigation on the court proceedings with respect to his daughter. The accused, in response, tried to reassure Mr Marle, saying: [427]

22. [276]

    When Mr Marle said, “I don’t have fuckin’ story”, the accused responded “there you go”. [428] Then a little later the following exchange takes place: [429]

23. [277]

    A short while later, the exchange continued: [430]

24. [278]

    In a similar vein, the accused said to Mr Marle on 14 June 2019, [431] that “I’m the one that’s gunna be in trouble”. [432] At other points, the accused said “the only person who has got to worry Marley is me” [433] and when Mr Marle said “what can you offer me apart from that” [434] the accused said “I haven’t got to offer you anything cause you’re not in trouble”. [435] Mr Marle insisted he is in trouble because he was “here”, [436] apparently referring to the accused’s house, and the accused, again, insists he was not, [437] and says that “if you were here, then, you’ll probably will get into trouble but you weren’t here”. [438] A little later, the following exchange takes place, prompted by Mr Marle insisting he was present: [439]

25. [279]

    This conversation appears to suggest a concern on the accused’s part that Mr Marle may have spoken to others, likely the police. In the context of the entire conversation, however, this can be understood as an alternative which would prevent Mr Marle from insisting that he was not present on the night under discussion.

26. [280]

    In that same conversation, Mr Marle raised with the accused, that on the night in question the accused showed him the bat and told him that he, the accused, was “gunna to do it”. [440] The accused responds telling Mr Marle to “shut up”, [441] rather than denying any significance with respect to the bat. It is not possible to place weight on the accused telling Mr Marle to “shut up” at this point. The difficulty is that Mr Marle is, at this point, recounting an aspect of his account that was not supported by Mr Stonestreet. It was, additionally, one of the more incredible aspects of Mr Marle’s recollection, it being unlikely that, even if the accused did kill the Mr Willis, it was premeditated to that extent. Finally, the accused by this point was clearly becoming increasingly exasperated with Mr Marle’s refusal to let the subject go, so it is not at all surprising that he would tell him to “shut up” rather than encouraging further engagement.

27. [281]

    Despite the accused’s frustration with Mr Marle, the conversation continued, with the accused continuing to insist that he was by himself, concluding: [442]

28. [282]

    As Mr Marle continued to press the accused, the accused said, “how do I know you’re not wired?”. [443] Mr Marle then satisfied the accused that he was not. While this suggests a concern on the part of the accused with respect to incriminating himself, it is short of an unambiguous admission. It was made in the context that the accused knew he was being investigated. Perhaps most significantly, after Mr Marle, against the protestations of the accused, stripped to show he was not “wired”, the accused’s account did not change.

29. [283]

    Still later on the same day, [444] the accused cautioned Mr Marle, stating, “if you keep speaking you’re gunna get yourself in trouble Marley”. [445] However, this statement was in the context of the accused telling Mr Marle that they “won’t be thinking of you because you’ve done nothin’”. [446] Mr Marle continued to raise concerns leading the accused to shout: [447]

30. [284]

    A short while later the accused told Mr Marle: [448]

31. [285]

    The above conversations are more significant to the Crown case than those I have dealt with to date. In these parts of the conversation, the accused appears to, at least, acquiesce with respect to the relevance of a bat. Alternatively, the accused is simply trying to manage Mr Marle who has, to this point, been persistent in suggesting that both he and the accused are in serious trouble. The accused is, in this context, heard regularly telling Mr Marle to “shut up”.

32. [286]

    As is clear on a number of occasions in the conversations, the accused insisted there was no one “here”, a reference to 6 Bassett Street, except himself. On the Crown case this is false. At best this is an attempt by the accused to write Mr Marle out of events, presumably, on the Crown case, with a view to obtaining his silence. There are a number of difficulties with this. Firstly, it is not clear that the accused knows this to be false. Of course, if guilty of the murder (in the circumstances alleged by the Crown) he knows Mr Marle and Mr Stonestreet were present. But again, I cannot reason from the presumption of guilt. An alternative explanation is the accused was aware that he is suspected of the murder, in which case it is likely he would be suspected of killing him somewhere proximate to the accused’s home, given that Mr Willis lived next door, many of their problems arose due to their proximity to one another, and it was unlikely they would be alone together at some other location. Mr Marle, in the conversations, continually insisted that he was “here”, inferring the scene of the crime. If, in the accused’s mind he was not guilty of the murder, it would follow that Mr Marle was not there and neither was Mr Stonestreet. The accused’s statements are consistent with the accused’s frustration that Mr Marle, and to a lesser extent Mr Stonestreet, were putting themselves in a position where they also came under (false) suspicion.

33. [287]

    There is an additional difficulty in relying on the accused’s statements in the recordings. In discussing what happened and whether Mr Marle was present or not, there is a lack of clarity around the event. At one point, the accused tied the event to what he thought may have been the Council’s annual party, which would correspond with 10 December 2010. As has been discussed, there had been a general view, maintained by the accused in his record of interview, that 10 December 2010 was the night on which Mr Willis was murdered. On the Crown case, based on the acceptance of Mr Cooper and Mr and Mrs Johnson, this was not the case. Plainly, the accused cannot incriminate himself based on the whereabouts of Mr Marle and Mr Stonestreet on a night that does not correspond to the night on which Mr Willis was murdered.

Conclusion

1. [288]

   As has been discussed above, the case against the accused changed somewhat as a result of the finding of remains belonging to Mr Willis. While removing any doubt as to his death, a matter which was, in any event, not seriously in contention, the additional evidence which resulted does not materially advance the Crown case.

2. [289]

   The most significant aspect of the further evidence, potentially probative of guilt, is the evidence of Dr McCardle. As discussed above, her evidence was that deceased suffered at least two blunt force traumas causing damage to his skull. As noted above, the first of these was to the left temporal area as evidenced by a depressed fracture to the left frontal bone. This is supportive of the account of Mr Stonestreet, at least to the extent that he ultimately gave an account of a blow to the head. It will, of course, be recalled that the blow had earlier been described as between the head and shoulders, that account itself coming after some prevarication as to seeing a blow at all. However, whilst Dr McCardle referred to it as the first blow, she ultimately made clear that it was the first known blow, in a context where much of the skull was missing. Further, whilst it was occasioned at a peri-mortem stage, in the field of forensic anthropology the peri-mortem stage can be sometime after death. Certainly, if the body was disposed of at the top of the waterfall, as appears to be the case, and this was done within a relatively short time from the murder (say within days) as would, again, seem likely, it would be very likely that the skull would be in the peri-mortem stage.

3. [290]

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

4. [291]

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

5. [292]

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

6. [293]

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

7. [294]

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

8. [295]

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

9. [296]

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

10. [297]

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

11. [298]

    The accused is discharged on the aforementioned indictment.