R v Forrest (No 3)

1. [1]

   Eric Forrest (“the accused”) has pleaded not guilty to one count of murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The Crown case alleges that the accused shot and killed David Collisson (“the deceased”). The deceased’s body was later placed inside a large tree trunk and burnt. The murder is alleged to have occurred on a large farm in the Mudgee area (“the farm”). The Crown case relies on eyewitness evidence and circumstantial evidence.

Factual Background

1. [2]

   The Crown case is that the deceased was last seen alive on 25 September 2023 at a rural property, Burrunah, in Menah. The property is about 15 minutes’ drive from Mudgee. Ellerslie is an adjoining agricultural property but both properties make up one farm, about 800 hectares, used primarily for livestock production of sheep and cattle.

2. [3]

   As at September 2023, Christopher Gillespie (also known as “Diz” or “Dizzy” or “Des”), had been the manager of both properties for about 30 years. He lived in a three-bedroom house on Burrunah, about 300 m from the main homestead which was occupied by Catherine Cox, the owner of the farm.

3. [4]

   As at September 2023, the accused and Mr Gillespie had known each other for several years. Although the accused had never formally worked on the farm, he did stay there occasionally since at least 2018-2019.

4. [5]

   Also living on Ellerslie were Wade Patterson and his partner, Suanne Peacey. Wade Patterson was a farmhand at the relevant time.

5. [6]

   The deceased and the accused knew one another prior to 25 September 2023.

6. [7]

   On 24 September 2023, the deceased, his partner (Lesley Plasto) and an associate (Scott Walters) travelled to Mudgee from Sydney in a car borrowed from a friend. On the morning of 24 September 2023, the group arrived at Mr Gillespie’s home. Their movements thereafter are of little relevance to the issues in this pre-trial application.

7. [8]

   Around 7pm on 24 September 2023, an unknown person lit a grass fire on an area known as School Hill at Ellerslie. The initial lighting of this fire was unrelated to the allegation. Multiple people notified the New South Wales Rural Fire Service (RFS). The RFS was able to contain the grass fire but the main tree was not extinguished on the night of 24 September 2023.

8. [9]

   At about 7am on 25 September 2023, Catherine Cox attended School Hill. At that time the main tree was still smouldering. At 10am, two members of the RFS attended School Hill. They observed that the main tree was still burning and extinguished it with water. At around 1:30-2pm, RFS attended the fire and did not observe any burning or smoke emitting from the main tree stump. No further action was required.

9. [10]

   The Crown case is that the accused travelled from the Central Coast to Dubbo in a white hatchback hire car. He picked up Jesse McMillan-Davies and Alison Mudford in Dubbo and gave them both a lift to Mudgee. They arrived at Burrunah after dark on 25 September 2023.

10. [11]

    At some stage on the afternoon of 25 September 2023, Lesley Plasto and Scott Walters left the farm and travelled back to Sydney. The deceased remained at Burrunah. By the time the accused and his group had arrived at Burrunah, Lesley Plasto and Scott Walters had already departed.

11. [12]

    Sometime after 9:12pm on 25 September 2023, the deceased, Mr Gillespie and Mr McMillan-Davies drove to the site of the School Hill fire on Ellerslie. After a couple of minutes, the accused arrived in his vehicle. Mr Gillespie and Mr McMillan-Davies were eyewitnesses to what happened next.

12. [13]

    As the accused approached, Mr McMillan-Davies noticed that he was holding his arm down like he was hiding something. When the accused raised his arm, Mr McMillan-Davies observed that the accused was holding a sawn-off double-barrel shotgun.

13. [14]

    The accused said, “you wanna treat me like a gronk”. The deceased put his hands in the air and pleaded with the accused. The accused pulled the trigger and the first bullet hit the deceased near his neck or shoulder area. The force of the shot knocked the deceased off his feet. While the deceased was on the ground, the accused ran back to the car and rummaged around in the back. On the Crown case, the accused was reloading.

14. [15]

    The accused ran back towards the main tree, after the deceased. The deceased was still pleading with the accused. The accused fired at least two more shots at the deceased and the deceased immediately fell to the ground.

15. [16]

    The accused ran back down the hill, placed the firearm in the car and drove off in the direction of Mudgee. Mr McMillan-Davies walked up the hill to where the deceased was lying face-down near the main tree. He nudged the deceased’s body with his foot and saw that the deceased was dead.

16. [17]

    In the hours after the alleged murder, Mr Gillespie and Mr McMillan-Davies were in the house at Burrunah. At some stage, the accused returned, still holding the firearm.

17. [18]

    In the early hours of 26 September 2023, Mr McMillan-Davies assisted the accused to move the deceased’s body. The Crown case is that Mr McMillan-Davies and/or Mr Gillespie assisted the accused in disposing of the body by burning it in the tree stump at School Hill.

The application

1. [19]

   At trial, the Crown seeks to adduce evidence of representations made by Mr Christopher Gillespie to civilian witnesses James Gillespie, Suanne Peacey and Wade Patterson, and in an interview with police on 25 October 2023.

2. [20]

   As set out above, the Crown case is that Mr Gillespie was one of two eyewitnesses to the murder. The Crown alleges that Mr Gillespie placed the deceased’s remains inside the tree trunk within a day, or days, of the alleged murder. The Crown also seeks to adduce evidence of three intercepted telephone calls from Mr Gillespie’s phone to contextualise his interview with police, if portions of Mr Gillespie’s police interview are ruled admissible.

3. [21]

   Mr Gillespie died an accidental death in April 2024. The Crown makes an application pursuant to s 65 of the Evidence Act 1995 (NSW) to adduce the representations of Mr Gillespie.

4. [22]

   The Crown contends that the representations made to James Gillespie are capable of satisfying the requirement of “shortly after” in s 65(2)(b) of the Evidence Act and relies on s 65(2)(c) in the alternative. The Crown relies on s 65(2)(c) in respect of the representations to Suanne Peacey, Wade Patterson and the police. Section 66A is also relied upon for admission of discrete portions of the police interview and the three intercepted calls.

5. [23]

   The Crown provided notice of Mr Gillespie’s death to defence counsel on 30 July 2025 pursuant to s 67 of the Evidence Act. No issue is taken with the notice.

Relevant law

1. [24]

   The hearsay rule in s 59 of the Evidence Act provides as follows:

2. [25]

   Section 65 provides an exception to the hearsay rule in circumstances where the maker of the representation is unavailable. The section relevantly provides as follows:

3. [26]

   In R v Singh (No 4) [2021] NSWSC 75 (“Singh (No 4)”), N Adams J summarised the proper approach to s 65 as follows:

4. [27]

   Her Honour went on to observe that the “threshold of reliability under subs (b) is lower for the Crown than it is under subs (c) but it only relates to representations made ‘when or shortly after the asserted fact occurred’”: Singh (No 4) at [30].

5. [28]

   Section 65(2)(b) applies if the representation was made “when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication”.

6. [29]

   In Harris v R (2005) 158 A Crim R 454; [2005] NSWCCA 432 (“Harris”), the Court (Studdert J, Grove and Whealy JJ agreeing) considered s 65(2)(b) as follows:

7. [30]

   In R v Tarantino [2019] NSWSC 939 (“Tarantino”), Beech-Jones J also considered authorities on what is meant by the phrase “when or shortly after the asserted fact occurred”. His Honour found as follows:

8. [31]

   The above passages from Tarantino were cited with approval by N Adams J in Singh (No 4).

9. [32]

   Both sub-ss 65(2)(b) and (c) refer to the “circumstances” in which a representation was made.

10. [33]

    In Harris, the Court considered the circumstances within which the representations were made, finding that the circumstances made it unlikely that the representations were fabricated:

11. [34]

    In Singh (No 4), N Adams J comprehensively summarised the authorities on what constitutes sufficient circumstances to warrant the admission of hearsay representations at [32]-[42]. Her Honour found as follows:

Representations to James Gillespie

1. [35]

   The Crown case is that sometime prior to 1 October 2023, Mr Gillespie told his son, James Gillespie, what he had observed. James Gillespie made a statement to police on 3 November 2023 which included a conversation he had with his father. In his statement, James Gillespie stated that the disclosure by Mr Gillespie occurred prior to the commencement of daylight savings (which took effect from 1 October 2023).

2. [36]

   The Crown alleges that Mr Gillespie made the following representations to his son in the course of a single conversation:

3. [37]

   The Crown submits that the representations made to James Gillespie (less than a week after the alleged murder) are capable of satisfying the requirement of “shortly after” in s 65(2)(b). In the alternative, the Crown relies on s 65(2)(c).

4. [38]

   The Crown contends that the following circumstances make it unlikely that the representations are a fabrication (s 65(2)(b)), or in the alternative, highly probable that they are reliable (s 65(2)(c)):

5. [39]

   I note that Mr Gillespie disclosed to his son that he had been involved in the disposal of the deceased’s remains. He did not include this in his statement to police weeks later.

6. [40]

   The accused contends that the representations were not made “shortly after”. Furthermore, the accused submits that Mr Gillespie had a motive to fabricate his account to his son, namely, to exculpate himself and assure his son he had not been involved in such a crime. Although at the time that he made the representations to his son, the police investigation had not commenced, it is contended that Mr Gillespie was in effect planting a seed, seeking to distance himself from the alleged murder, knowing that at some stage the police would become involved.

7. [41]

   The Evidence Act does not define what “shortly after” means. It is also notable that the authorities do not provide consistent guidance by way of any defined period for what constitutes a “short time”. Instead, the meaning of “shortly after” requires a normative judgment to be made dependent on the circumstances of the case.

8. [42]

   With respect to the representations made to James Gillespie, it appears that they were made within days of the alleged murder and at a time before the police had commenced their investigation into the disappearance of Mr Collisson. In addition, the representations to James Gillespie include representations against interest. Mr Gillespie told him that he, Christopher, was responsible for burning the body.

9. [43]

   I am satisfied that the representations made to James Gillespie were made shortly after the asserted fact occurred and in circumstances that make it unlikely that the representations are a fabrication. In the alternative, I am satisfied that the representations to James Gillespie were made in circumstances that make it highly probable that the representations are reliable.

10. [44]

    Accordingly, the representations made by Christopher Gillespie to James Gillespie are admissible.

Representations to Suanne Peacey

1. [45]

   Suanne Peacey had lived on the farm where the murder allegedly took place since 2022. She is Wade Patterson’s partner. She made a statement to police on 13 November 2023. During oral submissions, the Crown accepted that the timeframe for when the representations were made to Suanne Peacey is imprecise but contends that the conversation likely occurred within a week or two of the alleged murder.

2. [46]

   Suanne Peacey stated that one night she observed a fire and then saw the fire brigade attend. On the Crown case, this was on 24 September 2023. One or two nights later, she looked out the bedroom window and could see the blue tractor being driven along the road from the direction of Mr Gillespie’s driveway towards the river. On the Crown case, this was Mr McMillan-Davies moving the body. A day or two after seeing the tractors, Suanne Peacey’s partner Wade Patterson repeated to her in detail a conversation he had with Mr Gillespie about the shooting.

3. [47]

   A few days after that conversation, Mr Gillespie asked them to dispose of his bins at the tip and kept making comments like, “the police are coming”. When they went to get the bins, Mr Gillespie made a series of representations.

4. [48]

   The representations included the following:

5. [49]

   During oral submissions, the Crown accepted that the fact that Mr Gillespie made comments to Suanne Peacey such as, “the police are coming”, may indicate that Mr Gillespie was aware of impending police involvement at the time the representations to Suanne Peacey were made. This would extend the possible timeframe of the representations to approximately three weeks after the alleged murder. The Crown therefore did not press s 65(2)(b) and relied on s 65(2)(c) instead.

6. [50]

   The Crown relies on the following circumstances to establish that it is highly probable that the representations are reliable:

7. [51]

   The accused submits that the representations are self-serving and that Mr Gillespie had a motive to fabricate the narrative to distance himself from any involvement with the shooting.

8. [52]

   There is a degree of uncertainty as to when these representations were made to Suanne Peacey. The alleged murder took place on the evening of 25 September 2023. Ms Plasto reported Mr Collisson missing on 14 October 2023. The police had spoken to Mr Gillespie at the farm by 17 October 2023.

9. [53]

   The representations to Ms Peacey were made weeks, not days, after the asserted fact occurred in circumstances where Mr Gillespie was aware of (or at the very least suspected) the impending police investigation. I am not satisfied that the representations were made when or shortly after the asserted fact occurred. I am therefore not satisfied that the representations are admissible pursuant to s 65(2)(b).

10. [54]

    However, the detail given by Mr Gillespie and the words used to describe what took place, together with the suggestion that he was involved in moving the body (that they went back with the tractor), are matters that satisfy me that the representations were made in circumstances that make it highly probable the representations are reliable.

11. [55]

    Accordingly, the representations to Suanne Peacey are admissible.

Representations to Wade Patterson

1. [56]

   Wade Patterson had been living on the farm since mid-2022. Wade Patterson made a statement to police on 15 November 2023.

2. [57]

   Wade Patterson described his relationship with Mr Gillespie as a “work relationship”.

3. [58]

   Mr Gillespie made representations to Wade Patterson on 24 October 2023, approximately a month after the alleged murder. The representations were clearly connected to the police investigation and Mr Gillespie’s discussions with police that very morning.

4. [59]

   The representations included the following:

5. [60]

   The Crown relies on s 65(2)(c) given the lapse of time between the alleged murder and the representations.

6. [61]

   The Crown relies on the following circumstances to establish that it is highly probable that the representations are reliable:

7. [62]

   The Crown also relies on the fact that Mr Gillespie was aware that Wade Patterson’s position at the farm had been terminated and that Wade Patterson and Suanne Peacey were to leave.

8. [63]

   The accused submits that these representations were an attempt by Mr Gillespie to put in the mind of others that he had nothing to do with the shooting. This is particularly the case as the police had attempted to speak to Mr Gillespie prior to these representations (including that very morning).

9. [64]

   The representations to Mr Patterson contain representations against interest. Mr Gillespie told Mr Patterson, “we burnt it”, implicating himself in the disposal of Mr Collisson’s body. Furthermore, Mr Gillespie’s representations include an assertion that the body was placed in a “stump”, which was burning.

10. [65]

    The level of detail and the admissions against interest are features of the representations which satisfy me that they were made in circumstances that make it highly probable that the representations are reliable.

11. [66]

    Accordingly, the representations made to Wade Patterson are admissible.

Representations by Christopher Gillespie to police

1. [67]

   On 17 October 2023, Mr Gillespie was spoken to by police on the farm. The conversation was recorded on body worn video. Mr Gillespie said the deceased left the property and that was the last time he saw him. Mr Gillespie told police he did not know what happened to him.

2. [68]

   On 19 October 2023, Mr Gillespie told police he had been too busy to attend the police station to make a statement. James Gillespie (who was with him) told police he did not know anything.

3. [69]

   On 24 October 2023, Mr Gillespie was spoken to by two officers. He said he would attend that day to make a statement but he did not.

4. [70]

   On 25 October 2023, police executed a search warrant at the farm. The officers spoke to Mr Gillespie and he disclosed observing the accused shoot at the deceased with a double barrelled gun. Mr Gillespie took police to the location where the shooting allegedly occurred.

5. [71]

   Sometime later, also on 25 October 2023, Mr Gillespie participated in a 2-hour interview with police under inducement. After the interview, Mr Gillespie participated in a 15-minute recorded walkthrough of the scene with police.

6. [72]

   The representations made to police included how he knew the deceased and prior interactions. For present purposes, the representations relevantly included the following:

7. [73]

   The Crown relies on the following circumstances of the police interview to establish that it is highly probable that the representations are reliable:

8. [74]

   The Crown submits that the untrue representations (that Mr Gillespie has no knowledge of the location of the remains and was not involved in moving the body) can be considered separately from representations regarding the shooting. Despite the statement to police being under inducement, the Crown submits this did not address his concern about losing his job and home at the farm where he had lived for more than 30 years.

9. [75]

   The Crown also seeks to adduce evidence of intercepted telephone calls from Mr Gillespie’s phone to contextualise his interview with police, but submits this material is only relevant if Mr Gillespie’s representations to police are admissible.

10. [76]

    The Crown points to the consistency of Mr Gillespie’s representations of the alleged shooting to the civilian witnesses and the police. There is some authority to the effect that the consistency of the representations is relevant to my determination of the “circumstances” within which the representations are made: R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 at [29]; Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [69]-[71]; Williams v The Queen (2000) 119 A Crim R 490; [2000] FCA 1868 at [54].

11. [77]

    The accused notes that Mr Gillespie gave conflicting versions of events to police on 17 October and 25 October 2023. This is relied on to support the submission that Mr Gillespie is prepared to fabricate versions to the police.

12. [78]

    The Crown relies upon s 65(2)(c). I am not persuaded that the representations made by Mr Gillespie to police were made in circumstances that make it highly probable that the representations are reliable.

13. [79]

    I have come to that view for several reasons. Firstly, the representations were not made spontaneously but after a lengthy period of time following the alleged murder.

14. [80]

    Secondly, the representations, while consistent in relation to witnessing the accused shooting and killing the deceased, contained conflicting versions as between the accounts given on 17 October and 25 October 2023.

15. [81]

    Thirdly, Mr Gillespie was not forthcoming about his role in the disposal of the body.

16. [82]

    Fourthly, by the time he made his representations to police, Mr Gillespie was aware that they were investigating the disappearance of Mr Collisson, likely suspecting it to have been a homicide. He was present at the time of the alleged murder and, at the very least, was involved in burning the body. He was a person who was or may have been criminally concerned in the events giving rise to the proceedings and at the time he made his representations to the police, it is highly likely that he was doing his best to minimise his role and maximise the role of the accused.

17. [83]

    Accordingly, I am not satisfied that the representations made by Mr Gillespie to the police were made in circumstances that make it highly probable that the representations are reliable and thus the evidence is excluded.