R v Simmons (No 7)

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

5. [5]

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

6. [6]

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

7. [7]

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

8. [8]

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

Presumption of innocence

1. [9]

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

Onus and standard of proof

1. [10]

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

2. [11]

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

3. [12]

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

Essential elements

1. [13]

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

   1. (1)

      That Mr Russell is in fact deceased.

   2. (2)

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

2. [14]

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

3. [15]

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

Drawing inferences from direct evidence: circumstantial reasoning

1. [16]

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

2. [17]

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

3. [18]

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

4. [19]

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

Consciousness of guilt

1. [20]

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

2. [21]

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

3. [22]

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

4. [23]

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

5. [24]

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

Identification

1. [25]

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

2. [26]

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

3. [27]

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

4. [28]

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

5. [29]

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

   1. (1)

      Evidence of identification may be unreliable.

   2. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

      Features that can affect the reliability of identification evidence include:

6. [30]

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

7. [31]

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

Admissions

1. [32]

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

2. [33]

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

Out of court statements by witnesses

1. [34]

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

2. [35]

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

3. [36]

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

4. [37]

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

5. [38]

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

Witnesses and fact finding

1. [39]

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

Unreliable evidence and witnesses requiring a cautious approach

1. [40]

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

2. [41]

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

Prejudice, bad character and tendency

1. [42]

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

2. [43]

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

3. [44]

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

4. [45]

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

5. [46]

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

6. [47]

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

7. [48]

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

8. [49]

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

9. [50]

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

10. [51]

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

11. [52]

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

12. [53]

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

13. [54]

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

14. [55]

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

15. [56]

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

16. [57]

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

17. [58]

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

18. [59]

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

19. [60]

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

20. [61]

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

21. [62]

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

22. [63]

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

23. [64]

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

24. [65]

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

25. [66]

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

26. [67]

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

27. [68]

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

28. [69]

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

29. [70]

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

30. [71]

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

31. [72]

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

32. [73]

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

33. [74]

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

34. [75]

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

35. [76]

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

36. [77]

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

37. [78]

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

38. [79]

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

39. [80]

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

40. [81]

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

41. [82]

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

42. [83]

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

43. [84]

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

44. [85]

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

Dangers of Ms Coloton’s identification evidence

1. [86]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

2. [87]

   Against that, I must also consider:

   1. (1)

      The lighting conditions were ideal for her observations.

   2. (2)

      Mr Russell was reasonably well known to the witness.

   3. (3)

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

   4. (4)

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

   5. (5)

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

3. [88]

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

4. [89]

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

5. [90]

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

6. [91]

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

7. [92]

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

8. [93]

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

9. [94]

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

10. [95]

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

11. [96]

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

12. [97]

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

13. [98]

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

14. [99]

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

15. [100]

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

16. [101]

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

17. [102]

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

18. [103]

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

19. [104]

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

20. [105]

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

21. [106]

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

22. [107]

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

23. [108]

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

24. [109]

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

25. [110]

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

26. [111]

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

27. [112]

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

28. [113]

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

29. [114]

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

30. [115]

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

31. [116]

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

32. [117]

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

33. [118]

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

34. [119]

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

35. [120]

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

36. [121]

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

37. [122]

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

Dangers of identification evidence of Mr O’Brien

1. [123]

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

   1. (1)

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

   2. (2)

      Mr O’Brien was identifying a stranger.

   3. (3)

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

   4. (4)

      The observation took place at night.

   5. (5)

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

   6. (6)

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

   7. (7)

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

2. [124]

   Against that:

   1. (1)

      Mr O’Brien was a very impressive witness.

   2. (2)

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

   3. (3)

      The street lighting was good.

   4. (4)

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

   5. (5)

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

3. [125]

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

4. [126]

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

5. [127]

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

6. [128]

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

7. [129]

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

8. [130]

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

9. [131]

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

10. [132]

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

11. [133]

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

12. [134]

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

13. [135]

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

14. [136]

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

15. [137]

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

16. [138]

    The cross-examination elicited the following from the police note book entry:

17. [139]

    Ms White claimed that she could not remember saying the things recorded in the note book and essentially claimed no memory of those things happening. However, she acknowledged that it was her signature and that she must have provided the police with that version. I treat Ms White’s evidence as to what happened during the March assault with considerable caution. I suspect that she gave a tailored account when first spoken to by the police. Why she did that is unknowable. Perhaps, she was angry with Mr Russell. However the omission of details such as the accused throwing punches and Mr Russell being taken away in an ambulance is remarkable. She now gives an account with the knowledge that her step-brother has gone missing and that the accused is on trial for murder. I simply do not know what parts of her evidence are true.

18. [140]

    I do, however, accept that she made some attempt to find Mr Russell once it was realised that he was missing. She put up posters and went to places that she knew he frequented. She did not find him and has not seen him since 2009.

19. [141]

    Wayne Burns is Kelly Burns’ brother. He was at 3 Slim Street on 2 June 2009. He saw Andrew Russell and said that Andrew left the house shortly before he (Mr Burns) departed. He said that Andrew said that he intended to go up Slim Street and get some Chinese. There is a Chinese restaurant amongst the tiny group of shops at the location known as Michelle’s Corner. Mr Burns did not recall that Mr Russell was particularly drunk but said that he may have been.

20. [142]

    Trevor Peters is the accused’s uncle. In 2009 he had a mobile telephone number 0422 153 815. He said that police approached him in August 2011 and asked him about three calls, 1 on the night before (2 June 2009) and two the following morning. He agreed that a young man called Corri Maguire was staying with him at the relevant time. He lived near the shops known as Michelle’s Corner and that there was a pay ‘phone at that location. He said that he later moved to Penrith and sometimes the accused would stay at his place. He initially said that he didn’t notice anything unusual about his nephew’s behaviour during those visits but then acknowledged that the accused was using ice at the time.

21. [143]

    Jacob Flood was a neighbour of the accused. He bought a tropical fish from the accused. The accused showed him a photograph and told him it was a photograph of Andrew Russell. Police officers interviewed him in 2013 about evidence that suggested that he may have had some involvement in the disappearance of Mr Russell. He denied that he had any such involvement then and he denies it now. He also denied that he played any role in the disposal of Mr Russell’s body. He denied saying anything to a man called Billy Warrington to the contrary and he denied speaking to Jodie Wright about the matter. He said that he did not speak to Jodie as “I think she’s an idiot”.

22. [144]

    Sharon Kelly knew both Andrew Russell and Tony Simmons. She last saw Mr Russell at the Bathurst Court House on 25 May 2009. She had received various text messages and other information about Mr Russell’s disappearance. This caused her to call Crime Stoppers. She described the source of her information as rumour resulting from “yabbering”.

23. [145]

    Jakob Peters was another unsatisfactory witness. At one point he said:

24. [146]

    His answers on most subjects were vague and uncertain. For the purposes of s 38 of the Evidence Act, I formed the view that the witness was not making a genuine attempt to give evidence in relation to matters in relation to which it was reasonable to suppose he had knowledge. I granted leave for the Crown Prosecutor to cross-examine him generally and on an interview with police on 13 March 2012. While Mr Peters acknowledged that he must have told police the things read to him from the interview, for the most part, he did not remember saying them or did not remember the incidents to which his interview related.

25. [147]

    Piecing it together as best I can, the following emerged from Mr Peter’s evidence in chief:

    1. (1)

       He had a serious drug addiction at the time and his memory of events is poor.

    2. (2)

       He was (and remains) a close friend of the accused. He had regular telephone contact up to the time of Mr Russell’s disappearance and for some years after that. At least part of the telephone contact between them was drug related.

    3. (3)

       He was present at Cripps Place Kelso during the March assault and was of the view that the accused “overstepped the mark” and “bashed Andrew”.

    4. (4)

       Either he or the accused took photographs or made a video recording of the incident on a mobile telephone.

    5. (5)

       He drove with the accused in the car on a number of occasions.

    6. (6)

       He had gone to Sofala fishing and swimming with the accused more than once. They had attended Wallaby Rock and another water hole to the east of Sofala (turning right through the town as you drive into Sofala from Bathurst). From the description provided by the witness and the evidence obtained on the view, the second water hole may have been “Jackie Kirins”. It is a spot a few kilometres out of town where there is a camping area and what might be taken to be a “4 wheel driving spot”. (It was many miles from the location on the Red Hill Road where the accused eventually took the undercover police.)

    7. (7)

       At some stage Mr Peters went on a trip to the Sydney Casino with the accused and Kieran Moore.

    8. (8)

       On return from that trip, he was dropped at or near Lena McFarlan’s house, near the fruit market on Sydney Road. That may have been the night of a party at Grace O’Hearne’s place. The party was to celebrate Grace’s 16th, 17th or 18th birthday.

26. [148]

    In view of the evidence of Mr O’Brien (the sighting of Mr Russell on the Sydney Road on the evening of 2 June 2009) and the admissions later made to undercover police (picking Mr Russell up on the Sydney Road), the temporal link between Grace O’Hearne’s birthday party and the accused and Mr Moore dropping Peters on the Sydney Road is potentially important. His evidence in chief (under cross-examination pursuant to s 38 was as follows):

27. [149]

    Another potentially significant part of Mr Peters’ evidence concerned the question of whether he had ever been told by Mr Simmons that he had picked up Mr Russell:

28. [150]

    The evidence did not improve under cross-examination by Mr Young. He continued to provide non-committal answers along the lines of “not that I can remember”, “yeah, vaguely, yes”, “no, sort of, vaguely” and “as far as I am aware”.

29. [151]

    The witness agreed that he had no specific knowledge about the night that Andrew Russell went missing. He said that the police were interested in a text message that had been sent to him by the accused. The question of whether the trip to the casino was the same day that he was dropped on the Sydney Road and the same day as Grace O’Hearne’s party became even less certain. He agreed that when the police asked him whether the party and the Casino trip occurred before or after Mr Russell went missing he replied, “I wouldn’t have a clue”. The witness seemed to be surprised when he was told that 2 June 2009 was not a Friday or Saturday night and then said that he could not recall whether the party was on a weekend (Friday or Saturday night) or during the week. (I note that 2 June 2009 was a Tuesday.)

30. [152]

    The other significant part of his evidence that was weakened in the course of the cross-examination concerned the timing of the return to Bathurst after the Casino trip. He was asked whether the group got back to Bathurst in daylight and he replied “yeah I think so yeah.” He went on to say:

31. [153]

    He was also reminded that he told the police that (on the night of the 16th birthday party) he had seen Tony Simmons later that night when Simmons came around to Zane O’Conner’s where the witness was drinking with “Brodie, Zane and Sam”. That evidence, if it can be relied upon, has some significance to both cases. On the one hand, the evidence is capable of undermining the suggestion that the accused picked up Mr Russell after dropping the witness off on Sydney Road. On the other hand, it may place the accused in or near Kelso late in the evening on the night of Mr O’Neill’s purported sighting of Mr Russell.

32. [154]

    The cross-examination also sought to establish (and, on its face, did establish) that the witness was with Ms Biles and the accused on the night before his arrest (that is, 15 January 2013). This was at Simmons’ uncle’s house in Penrith. The witness agreed that the accused was using methylamphetamine “pretty heavily” at that time and was using the night before his arrest. Further cross-examination by the Crown in re-examination appeared to challenge the evidence that the witness was with the accused that night.

33. [155]

    Towards the end of Mr Peters’ evidence I asked whether he remained friends with the accused until this day. He agreed that he was. This accorded with my observation that the accused and the witness smiled or smirked at each other on two occasions as the witness passed by the dock to enter the witness box. It is also consistent with the proposition that the witness was doing his best not to assist the prosecution in the case against his friend. The witness also agreed with the Crown that he had been in communication with the accused since his arrest.

34. [156]

    I propose to disregard any evidence given by the witness that tends to favour the accused unless that evidence is corroborated by evidence that I otherwise accept. I am comfortably satisfied that he was partisan and sought to give evidence that assisted the accused, irrespective of where the truth lay.

35. [157]

    Luke Davis was in custody at Bathurst Gaol in 2009. He thought his period in custody was between April and November of that year and identified the period by reference to the fact that he missed both of his sons’ birthdays. He met the accused while in custody. There was a conversation in which the accused said he knew Jamie Waring (a cousin of the witness) and that “the cops had his girlfriend’s mum’s car or something like that” and that this concerned a missing person. In cross-examination he agreed that the version he gave police was that the accused said “The cops took my misses and my mum’s car over the dog, they reckon we murdered Andrew [Russell]”. He agreed that the reference to “the dog” was a reference to Jamie Waring. He denied the proposition that he told the accused that he was present when Mr Russell was murdered (or assaulted) by Jamie Waring. When the details were put to him he said “First I’ve heard of that.”

36. [158]

    Detective Senior Constable Edmund Belfanti gave evidence concerning the search of a property on the northern bank of the Tobins Oaky Creek”. He was shown this area by an undercover officer and told that this was the area identified by the accused as the place where he and Kieran Moore had disposed of the body in a mine shaft. This was the area at 1380 Red Hill Road, the last location visited on the view. The detective described the area and the extensive searching that was carried out. No relevant evidence was located. He said the area around the bank of the creek showed signs of water erosion. The fence appeared to have been washed away. He knew the area well and some relatives lived not far away on the northern side of the Turon River (that is the side opposite the area of the search). He said the causeway at the intersection of the creek and the river was subject to flooding and that the water flowed rapidly due to the steepness of the catchment area.

37. [159]

    In cross-examination, Mr Belfanti agreed that he had never asked the owners of the property to describe what the relevant area looked like in 2009. They were not asked when the fence came down. He also agreed that he had never seen the relevant area of the creek in flood and that his relatives lived on the other side of the Turon River. He agreed that the blackberry bushes would have made accessing the area near the creek bank difficult had the infestation (that was evident and cleared in 2013 and grown back by the time of the view in 2015) existed in 2009.

38. [160]

    Detective Senior Constable Edward Grabham was the officer who acted as “shower” in the course of the view. His knowledge of the brief did not appear to be comprehensive. He gave evidence that the distance between Littlebourne Street and the Evans Bridge is 1.8 km. The distance from 3 Slim Street to the Dudley Hotel is 1.2 km. The distance by road from 3 Slim Street, Bathurst to Littlebourne Street, Kelso was 6.1 km but a walking route may have been a little shorter than that.

39. [161]

    Mr Grabham gave evidence of a variety of excavations and searches that were carried out in locations that the evidence suggested may have been a place where the accused disposed of Mr Russell’s corpse. This included a search in the area of Wallaby Rock. It also included the area near the creek on Red Hill Road. There were other areas excavated and searched as well. Mr Grabham spoke of signs of flooding in some of these areas and of some evidence of mine shafts and castings suggesting the existence of mine shafts. None of the searches produced any results.

40. [162]

    In cross-examination, he said that there was only one set of gates into the paddock off the Red Hill Road but retreated from that evidence when shown a photograph taken in the course of the view. He said that he was unaware when the land was cleared of blackberries for the purpose of the search. However, he agreed that he had never seen the area when it was infested with blackberry bushes. He could not assist as to the chain of ownership of the property around 2009. He agreed that a mine shaft on the property from which it appears that the paddock had been sub-divided was excavated and searched with no relevant findings. This area was “nowhere near” the paddock that the accused had identified. He spoke to a number of former owners (at least 3) and locals and none of them provided any information that there was ever a mine shaft or “ex mine shaft” in the area that had been attended on the view.

41. [163]

    On 1 April 2015 a view was conducted of 14 sites in and near Bathurst, Kelso and Sofala.

    1. (1)

       The Chips-N-Dales Newsagency is in the centre of Bathurst and is where the closed circuit television footage of Mr Russell was obtained on 2 June 2009. This footage and stills of the image of Mr Russell were released to media outlets after Mr Russell was reported missing.

    2. (2)

       The second site was the Knickerbocker Hotel, slightly up the road from the Chips-N-Dales Newsagency. Mr Russell was at the Knickerbocker on 2 June before he visited his father.

    3. (3)

       107 Seymour Street, Bathurst was where Andrew Russell’s father lived with his Ms Wallace.

    4. (4)

       The court then travelled to the Dudley Hotel in the west of Bathurst. This is where Mr Russell told Jamie Waring he was going to get more alcohol when he left their premises on the night of 2 June 2009.

    5. (5)

       3 Slim Street Bathurst was where Jamie Waring and Kelly Burns lived in June 2009 and where Andrew Russell was staying in the nights before his disappearance.

    6. (6)

       The corner of Littlebourne St and the Great Western Highway (aka ‘Sydney Road’) at Kelso is where the witness Michael O’Neil believes that he sighted Mr Russell on the night of 2 June 2009.

    7. (7)

       The roadside near the Evans Bridge was visited. The Evans Bridge leads into Bathurst on the Sydney Road. A cadaver dog was used to search the creek and bushland area on the Kelso side of the bridge. The pedestrian footpath is separated from the traffic lanes and is on the northern side of the bridge.

    8. (8)

       The Lions Berry Park is a small park on the right side of the Evans Bridge when facing the bridge from the Kelso side. This part of the view encompassed the Old Denison Bridge, a small bridge adjacent to the Evans Bridge. It no longer carries vehicular traffic. The site was visited to obtain a different view of the Evans Bridge.

    9. (9)

       9 Cripps Place, Kelso is where Mr Russell lived with the accused and Ms Biles. It was the site of the March assault.

    10. (10)

        The Sofala tip is on the southern side of Sofala. It was searched as a result of information that Mr Russell’s body may have been dumped at this location. Nothing was found.

    11. (11)

        Wallaby Rock is an area on the Turon River on the western side of Sofala. The accused told undercover police that he pushed Mr Russell from a cliff in this area. A cadaver dog search was conducted on a large portion of the mountain and the foot of the cliff. It took Sgt Grabham almost an hour to walk to the top after crossing the river in a four wheel drive.

    12. (12)

        The river crossing at Wallaby Rocks was used during the search to access the mountain area of Wallaby Rocks.

    13. (13)

        Jackie Kirin’s Waterhole was an area that the witness Luke Slater said that the accused referred to as ‘a good place to bury a body’, some 5 years prior to the disappearance of Andrew Russell.

    14. (14)

        A paddock area adjacent to the Red Hill Road and beside the Tobins Oaky Creek was a drive of around 10-15 minutes on a rough road to the east of Sofala. This is where the accused claimed to have dumped the body in a mine shaft. The paddock area was cleared and subject to an intensive search over 2 days.

42. [164]

    The Bathurst sittings concluded on 8 April 2015 and the Court resumed taking evidence on 9 April 2015 in Darlinghurst.

43. [165]

    Karlene Flood gave evidence that “I don’t know nothing about what happened”. This reflected at least part of what she said to the police. She had no memory of Tony Simmons showing her a photograph of Andrew Russell on a mobile ‘phone. Her memory was affected by “mental health issues”. She remembered Jodi Biles saying that she woke up one night and Andrew was in her bedroom looking at her.

44. [166]

    Jodi Biles commenced giving evidence on the second day of the trial and was stood down until the Court returned from Bathurst. She was the girlfriend of the accused at relevant times. She lived with the accused and Mr Russell at Cripps Place, Kelso until the time of the March assault. She was in a relationship with him in 2013 when the police were intercepting their telephone calls and engaged in an intensive undercover campaign. Ms Biles drove the accused to various locations where the accused met with undercover police officers. The couple have four children together and had been together since they were teenagers. They are now estranged. She is in custody serving a sentence due to expire in June but she has “other matters” and expects to remain in gaol after her current sentence expires. Meanwhile the accused is in custody on remand for the murder of Mr Russell.

45. [167]

    She gave evidence of the March assault. She said that Andrew Russell had been abusive towards her and she called the accused and told him. “Tony came home … and they had a fight.” However, “Tony did most of the fighting”. He was “just hitting him”. She retreated with the children into a bedroom and did not see the whole incident. She said that Jakob Peters was also present. She noticed blood but did not see Mr Russell’s face. She said that this was the second of two incidents that occurred that night. The first was when “Andrew called the police on me”. Kiara White was also present and she was still there when Tony came home. She said that she took the blame for the assault. She said that Andrew was shouting at Tony when the police came. She has only seen Andrew Russell once since that night and that was at Court on 25 May 2009.

46. [168]

    She said that she and the accused moved out of the house at Cripps Place that night and went to stay with a cousin (Nikki Barker) in Blayney. She said that she had a fight with the accused that night and the police attended. She took out an apprehended violence order against him and they split up for a period of time. She lived in Blayney for a few weeks and then moved to Dubbo. At “some stage” when she was living in Blayney the accused sold her a White Hyndai Excel. He had swapped his old Ford for the Excel. She did not receive it for some time after paying for it. He had done some painting on the interior of the Excel before giving it to her. The police took possession of that car from her in the course of the investigation into the disappearance of Mr Russell.

47. [169]

    She said that she knew Kieran Moore and “didn’t really like him”. Mr Moore owned a green VT Commodore. She agreed that in 2011 she had agreed to assist the police by speaking to Kieran Moore while wearing a listening device on her body. She visited Mr Moore twice while he was in Bloomfield Hospital.

48. [170]

    Ms Biles was then asked a series of questions concerning conversations that she had with the accused concerning Andrew Russell. She denied that he had said anything to her about Mr Russell’s disappearance and whether he and Kieran Moore were involved. She denied both general and specific questions concerning this. She agreed that she had made a statement to police on 25 June 2013, but said that the statement was false. She denied that accused had “at any time” told her that he was involved in the killing of Andrew Russell. She agreed that a statement she made in March 2009 about the March assault was not correct. That earlier (false) statement was calculated to exculpate the accused from responsibility for the March assault.

49. [171]

    The Crown prosecutor sought leave under s 38 of the Evidence Act to cross-examine Ms Biles. Mr Young SC properly accepted that the material available entitled the Crown to make the application. I granted leave to the Crown to cross-examine Ms Biles on the basis that (i) she was not making a genuine attempt to give evidence about matters upon which she ought to have knowledge about and (ii) she had made a prior inconsistent statement. After that ruling, Ms Biles was excused with her evidence to resume when the Court returned from taking evidence in Bathurst.

50. [172]

    Ms Biles returned to the witness box on 9 April 2015. Her affect was flat. Of the first 20 questions she was asked, she responded with the answer “yes” on 19 occasions. The other question commenced with the words “And you never returned …” She answered “no”. She was first cross-examined by the learned Crown Prosecutor and then by Mr Young SC on behalf of the accused. Without actually counting, on reviewing the transcript, I estimate that over 90% of the questions evoked a monosyllabic, single word, response. Essentially, counsel used Ms Biles as a vehicle through which to place on the record things that she had said before. Eventually, late in the day and almost at the end of Mr Young’s cross-examination, the Prosecutor raised an objection under s 42 Evidence Act. That provision allowed me to disallow leading questions in cross-examination. The Crown relied on matters in sub-s (2), suggestion that the witness was biased towards the accused. I was not convinced of that because Ms Biles seemed to be agreeing largely with the propositions put to her by both counsel. However, I upheld the objection on the basis that the evidence “would be better ascertained if leading questions were not used” (s 42(3)).

51. [173]

    The cross-examination by the Crown established various things that Ms Biles told police that the accused said to her. For the most part, she agreed that these were things that the accused actually said. In other words, she adopted the statements that she had made to the police. The statements she attributed to the accused were wildly inconsistent.

52. [174]

    Evidence was led that Kieran Moore told her that he and the accused had “killed Andrew for [me]”. This evidence was led on a limited basis and it was not relied on to prove the fact that the accused killed Mr Russell. Ms Biles later spoke to the accused and he denied the allegation. He told her that Moore was drunk and crazy.

53. [175]

    Ms Biles also gave evidence of the statements made by the accused in the presence of Melissa O’Donoghue and Graeme Hinchcliffe. She said that she could not remember what the accused said but agreed that in August 2011 she told police that the conversation occurred in the middle of 2010. She was playing with the kids while Melissa and Graeme were sitting at the table. She told the police that the accused said that he had assaulted Andrew and that he had killed him. He only implicated himself and nobody else. (This can be contrasted with the version given by Ms O’Donoghue and Mr Hinchcliffe who said that Jamie Waring was involved.) Ms Biles agreed with the Prosecutor’s proposition “that is true, isn’t it, that is what you heard.”

54. [176]

    Ms Biles gave evidence of another conversation when Mr Simmons had told her that Mr Russell’s body had been put in a “garbage bin [or a wheelie bin] at Sofala”. In that conversation, Mr Simmons said that Jamie Waring had killed him and put him in a wheelie bin at Sofala tip. Ms Biles had told her grandmother about this and her grandmother rang Crime Stoppers.

55. [177]

    Ms Biles next gave evidence of a ‘phone call when the accused was in custody and a conversation during a gaol visit at around the same time. This evidence was confusing. She said:

56. [178]

    Ms Biles agreed that she visited the accused on the day of his arrest (16 January 2013) and he asked her “to ring Kieran and ask him to go visit him.”

57. [179]

    Ms Biles was asked about a conversation she had with the accused when she visited him at the gaol at Silverwater (MRRC) at some time around Australia Day 2013. She initially said that she could not remember this conversation because she was using drugs at the time. However, she agreed fairly quickly that she provided the police with a version of what the accused told her along the following lines. The accused said that he and Moore were driving in her white Hyundai Excel between Kelso and Bathurst and saw Andrew Russell. He asked Moore to stop and he (the accused) got out of the car and punched Andrew. Andrew didn’t get up and they wrapped the body in plastic. They moved the body to near the Good Guys. (From the view, I know that this is a large shop on the southern side of the Sydney Road not very far east of the bridge). Ms Biles told police that the accused told her that “a few hours later” they went back, confirmed that Mr Russell had no pulse and then moved the body to the Sofala area, still driving the witness’ Hyundai Excel. They threw the body off a cliff and then picked it up again. She said, “Tony told me that it took them two hours to walk down and get Andrew because they could still see him lying down at the bottom of the cliff from the roadway”. They then put the body down a mine shaft.

58. [180]

    Immediately after telling her this, the accused told her that he didn’t do it and that he was innocent.

59. [181]

    That last comment is an example of the stark inconsistencies within the evidence of the accused’s admissions and statements. However, in this particular instance, there may be a rational explanation. It may be that the narrative described is what the accused told the witness that he told the undercover officers. This possibility was explored in the cross-examination and re-examination.

60. [182]

    Mr Young SC cross-examined Ms Biles in the approximate chronological sequence in which the statements she attributed to the accused occurred. First she was asked to flesh out her evidence relating to the March assault. Ms Biles confirmed that the assault occurred following an incident between her and Mr Russell in which Mr Russell tried to kick her out of the house, was threatening her and looked as though he was going to punch her in the head. Mr Russell was drunk, violent and abusive. She punched him in the head. After some “toing and froing” at the front door, Mr Russell fell face first onto the concrete path. The police came and went and she told the accused about the incident which led to “fisticuffs” between the accused and Mr Russell.

61. [183]

    She was then asked about the conversation that took place in the presence of the witnesses O’Donoghue and Hinchcliffe. She agreed that the words “killed him” may not have been used and also that her account of the conversation (and the conversation itself) may have been muddled (my word) by talk of the March assault and rumours that were floating around Bathurst at the time. She also said that “Tony was using drugs” at the time.

62. [184]

    She was asked about her relationship with Kieran Moore and agreed that she told the police that she hated him. When he drank he was “an idiot. He was abusive and horrible”. The witness did not appear to take Moore’s comments in the garage seriously.

63. [185]

    She was referred to her statement and confirmed that the accused at one stage told her that Jamie Waring had killed Andrew Russell and that Waring and Jodie Wright dumped the body in a wheelie bin at the Sofala tip.

64. [186]

    She was taken to the evidence of the telephone conversation and gaol visit. She agreed that the statement she made to police on 25 June 2012 suggested that the accused had said in the telephone call that he “killed Andrew because he loved me”. She was then shown a transcript of a recorded telephone conversation that occurred on 23 August 2011. There was reference to the accused saying “I don’t know if I’m even going to get out” and she said “the past might come back and bite you on the arse” to which the accused replied “what?” and “yeah, maybe”. She agreed that nowhere in the conversation did the accused say that “he and Kieran killed Andrew Russell”:

65. [187]

    When Mr Young turned to the conversation that Ms Biles said occurred when the accused was on remand, the Crown raised the objection under s 42 Evidence Act and asked me to disallow leading questions. The application was based on the assertion that Ms Biles had “an interest consistent with an interest of the cross-examiner” and was “sympathetic to the party conducting the cross-examination” (s 42(2)(b) and (c)). I was unable to make a positive finding in that regard in view of the following question an answer:

66. [188]

    My impression was that Ms Biles was as compliant with the Crown’s cross-examination as she was with the cross-examination conducted on behalf of the accused. For the most part, she simply agreed with the things that were put to her in completely leading form. I disallowed further leading because I was “satisfied that the facts concerned would be better ascertained if leading questions were not asked”: s 42(3).

67. [189]

    In relation to the conversation in the gaol, Ms Biles said that the accused told her what he had told the undercover police officers and said, “he told me that it’s the same thing that he’d told them”. The cross-examination finished with the following:

68. [190]

    Ms Biles was then re-examined sharply as to the fact that paragraph 45 did not say that the accused told her that he lied to the undercover officers. She agreed that the statement only said that “he told the undercover policeman the same story that he told her” and that this was “a detailed account of how he and Kieran had killed Andrew”. With the exception of the first answer (“It doesn’t”) every answer she gave in re-examination was in response to a leading question that provoked the single word answer (“yes” or “no”) that was suggested by the question.

69. [191]

    Stefanie Langbien gave evidence from a remote location (a room in a court house in New South Wales). I was told that this was necessary because of the fact that she lived a long distance from both Bathurst and Sydney and was caring for young children. There was no objection to the evidence being given in this way and I made the necessary order under to s 5B(1) of the Evidence (Audio Visual Links) Act 1998 (NSW).

70. [192]

    Ms Langbien presented as a reasonably feisty witness. She had been in a relationship with the accused during 2009. The accused came and went as he pleased – “that was Tony”. He saw her three or more times per week, usually at her rental property in Durham Street, West Bathurst. The accused led her to believe that he was going to leave Jodi Biles and the children and pursue a full time relationship with her but this never happened. The relationship had its problems and there were arguments and fights. She described one occasion when she cut herself with a knife in order to gain the accused’s attention and stop him from leaving the house. She was using a lot of drugs at the time. These were supplied by the accused who was an “amphetamine dealer”.

71. [193]

    She heard about the disappearance of Mr Russell on the television news. Some short time after that (“roughly a month”) she was threatening to end the relationship with the accused when he said “You’ll never get away from me because I’m Tony Simmons” and “I would never get away from him because he’s gone for a long time now”. He said he was talking about:-

72. [194]

    After that argument the relationship “continued to an extent”. It finally came to an end later in the year when the accused and Jodi Biles broke into her rental property, took various items of property and “pretty much trashed” the place. Much later, she received a message that Tony Simmons wanted her to contact him and there was some telephone contact while he was in custody. A couple of weeks after that Ms Langbien contacted police and told them about the conversation regarding the guy on the news.

73. [195]

    Ms Langbien was steadfast under cross-examination. However, I found her responses to be defensive, argumentative and sometimes non-responsive. For example, she was asked a simple question about whether the statement she made to police on 7 September 2011 “sets out as best you can remember the conversation” and she replied. “It’s six years ago, and I was under the influence of illegal substances, yes”. My impression was that the witness remained angry and resentful about the accused’s treatment of her.

74. [196]

    She gave some evidence about various vehicles and agreed that the accused often got lifts from different people because he had “a bit of a problem with his licence”. She also agreed that there was a lot of talk around town about the disappearance of Mr Russell.

75. [197]

    She agreed that she had not spoken to the accused about his alleged confession (“I did it”) when she spoke to him in gaol and there was no recording of the conversation apart from what she said to police around two years later. She said that she had never spoken to anybody about the alleged confession until she spoke to the police in September 2011. Nor had she kept a diary note or similar. The following passage is extracted from the cross-examination:

76. [198]

    Given the abusive and dependant nature of the relationship as described by the witness, it may be understandable that she did not want to believe the confession or that she did not report it to the police immediately after it was made. However, there is no real explanation for the failure to do anything about the confession in the weeks and months that followed the termination of the relationship, particularly in view of the way in which the relationship ended (with Jodi Biles and the accused committing a break and enter of her home).

77. [199]

    A confession such as the one attested to by Ms Langbien is easy to fabricate and difficult to disprove. Ms Langbien had some motivation to fabricate it. The delay in reporting the conversation to police, and the failure to tell anybody about it, impacts upon the credibility of this evidence. Standing by itself, I would be inclined to reject the evidence of this alleged confession out of hand. However, I should consider it in the light of all of the evidence in the case.

78. [200]

    Christine Wright is the mother of Jodie Wright (one of Mr Waring’s girlfriends). She knew Andrew Russell and said that he had expressed a liking for Jodie who was 16 or 17 years of age at the time. This occurred early in 2009. In cross-examination she agreed that her statement said that Mr Russell had said “I love Jodie. I am going to marry Jodie.” Because of her daughter’s age, Mrs Wright told Mr Russell to “wake up and go home”.

79. [201]

    Kypros Kypri was in custody at Wellington Gaol in 2012. The accused was a fellow inmate. He said that he was waiting to use the ‘phone in the print shop and “overheard a conversation on the phone that he [the accused] was having with the other person”. He said the conversation was “heavy”. He then said:

80. [202]

    He met Jamie Waring when Waring came to share a cell with the accused. The accused later expressed the belief that the police deliberately put Waring in his cell “because he is Andrew’s cousin or someone”. Mr Kypri denied speaking with Waring other than saying hello.

81. [203]

    There was a brief but torrid cross-examination in which inconsistencies with his police interview and his criminal history were raised with Mr Kypri. He denied that he was a “cheat” but agreed that he had an extensive record of obtaining benefits by deception. He effectively refused to discuss the facts of his criminal history (“I don’t need to tell you, read the charge”). He agreed that he was doing his best to assist the police but denied that he had anything to gain by doing so. He denied that he was “making it up” but agreed that he was generally a dishonest person.

82. [204]

    In re-examination Mr Kypri said that he had not told any lies in his evidence.

83. [205]

    Taken at its highest, the probative value of this evidence is marginal. Precisely what the conversation meant (assuming it occurred) is difficult to safely deduce. In any event, the quality of Mr Kypri’s evidence is extremely poor. He may be honest, accurate and reliable. It is impossible to tell. I very much doubt it. He is the kind of witness whose evidence is notoriously unreliable. Even though no precise motive for him to fabricate the conversation was established, he is a prison informer with an unfortunate history of committing crimes by deceiving people. His dishonesty and the inconsistency in his evidence were exposed in cross-examination. His evidence should be given very little weight.

84. [206]

    Casey Benger gave brief evidence of her knowledge of Mr Russell’s movements early on the 2 June 2009. She met him at Kelly Burn’s house on that day. She, Kelly, Andrew Russell and some of the children went into town by taxi. Andrew bought himself some new shoes (“a white skate jogger”) and then went with Jodie to buy his father a birthday present from Chip-N-Dales newsagency. The witness met with Andrew Russell again outside of the Knickerbocker Hotel. She went back to Kelly’s house at around 6pm. She remembers the day because it was her mate’s funeral. She never saw Andrew Russell after 2 June 2009. She did not see Paula Morrison that day and did not see Andrew Russell speaking with anybody during the day. In cross-examination she said that Jamie Waring had stayed at home with Kelly’s three children.

85. [207]

    Corri McGuire gave evidence that in June 2009 he was living with Trevor Peters at 272 Lambert Street in Bathurst. He “vaguely” remembered 2 June 2009 and said he caught a bus to Kelso. He saw Trevor Peters in Kelso and got a lift back home with him. He said he did not see the accused during the day and that the accused owned a white Hyundai Excel. In cross-examination he agreed that he had made a second statement in which he told police that he drove Tony Simmons to Kelso in the white Hyundai Excel on 2 June 2009 and then drove home. He and, relevantly, the accused’s motor car remained at the premises for the rest of the night. The witness did not really adopt what was said in this second statement but agreed that this is what it said. The relevance of that information is that it has a capacity to undermine evidence (for example, the admissions allegedly made to Jodi Biles) that suggests that the accused used the white Excel to perpetrate the crime or to cover it up.

86. [208]

    Kieran Moore is a friend of the accused. On 18 January 2013 (two days after Simmons’ arrest) he was arrested for and charged with murder. He was arraigned on a charge of accessory after the fact of murder and was discharged upon the Crown advising that the Director of Public Prosecutions had directed that there be no further proceedings against him. This direction followed my ruling that certain evidence proposed to be led against him was inadmissible: R v Simmons; R v Moore (No 3) [2015] NSWSC 189. When he was called to give evidence, he objected to giving evidence and invoked the privilege against self-incrimination (s 128 Evidence Act). Mr Stratton SC argued that he should not be required to give evidence in the proceedings at all. I upheld the objection but required Mr Moore to give evidence with the protection of a certificate: see R v Simmons (No 6) [2015] NSWSC 418.

87. [209]

    When he was charged with the murder on the only significant evidence that he was a principal (as opposed to an accessory) was in the versions given by the accused to the undercover police officers. He was arrested in a park near his home, apparently pursuant to some arrangement with the police. He was interviewed electronically and exercised his right to silence. After that interview his mother was allowed to visit him. He then had a conversation with his stepfather (John Fazio). After that there was a further conversation with the police that, at least from Mr Moore’s point of view, was said to be “off the record”.

88. [210]

    According to Mr Moore’s evidence in this Court, he told the police:

89. [211]

    The Crown led Mr Moore to the point where he agreed that he had said certain things to the police but said that what he said was untrue. By that stage he had given evidence that he knew nothing about the disappearance of Mr Russell, did not stop at the accused’s request, did not see the accused bash Mr Russell and did not assist in the disposal of the body. The Crown sought leave under s 38 Evidence Act to cross-examine Mr Moore as an adverse witness. Mr Young SC objected to leave being granted on the basis that the witness had not denied the conversation with the police and that the issue was not whether those things were said but whether they were true. I rejected those submissions and formed the view that the “off the record” statement was itself a prior inconsistent statement for the purpose of s 38(1)(c). I granted leave on that basis. The evidence that I have extracted above was given under cross-examination after leave was granted to the Crown.

90. [212]

    The Crown cross-examined Kieran Moore about the things he said to the police in his “off the record” conversation and the things he said to Jodi Biles while he was in the Bloomfield Psychiatric Hospital. The Crown challenged Moore’s evidence that he had made up the story that he told police while he was at the police station. It was put that this was inconsistent with the fact that he had told Jodi Biles similar things at Bloomfield and (based on that conversation) in the garage at the accused’s parent home. It is necessary to set out the relevant portions of the conversations with Jodi Biles. What follows is taken from a transcript although I have added the words “[YOU SAID IT]” which I perceived to be clearly audible twice but recorded only once.

91. [213]

    I accept the Crown’s contention that Kieran Moore did not make up the whole of the “off the record” story then and there at Bathurst Police Station. While Mr Moore did not say anything to Jodi Biles on 1 September 2011 about stopping the car, about Mr Russell being bashed or unconscious or about disposing of the body, he did say that he had seen Mr Russell walking along one night in the rain on the return from Sydney at a time when he and Simmons were not drinking. It is difficult to work out whether he was talking about one occasion (when Biles was driving and Jakey Peters was in the car) or two occasions, but on neither occasion was there any suggestion that the car stopped or that anything happened. However, it is clear, based on the conversation with Jodi Biles on 1 September 2011, that Moore had said certain things along similar lines to Biles herself and to at least one other person (Jakie Peters) at an earlier time. He claimed (even in 2011) that anything that he had said before was a “story” and that the actual sighting of Mr Russell was the seed out of which one of those stories grew. He told Ms Biles that the stories were told to prove the accused’s love for Biles (to paraphrase, “he did it for you”) or to “put the wind [up] Jacob [Peters]”. He told her that they were, or were based on, “chinese whispers … coming back to bite us in the arse”.

92. [214]

    Mr Moore said that he was under pressure from his parents to say something to the police and that he believed they would let him go to Bloomfield Hospital if he told them something. He said that police had told him that the accused “had been putting the blame on me and I was going to gaol for something I didn’t do”.

93. [215]

    Mr Moore agreed that in June 2009 he owned a green Holden Commodore VT and used to drive the accused around. He said that he had some “psychiatric issues” and spent time in Bloomfield Hospital in 2009 where Jodi Biles visited him. He was asked about an occasion when his stepfather John Fazio visited him in custody and he saw the accused outside the visits area. He gave evidence of a short conversation of no consequence.

94. [216]

    Kieran Moore is a witness whose evidence would be subject to a warning if the trial were being conducted before a jury. Based on his “off the record” statement to police and the conversations with Ms Biles, he was criminally concerned in the events giving rise to the charges. On that evidence, he was (at least) an accessory after the fact. On some of the other evidence in the case (for example, the version provided by the accused to undercover police) he was a principal in the second degree to the murder itself. Accordingly, I must treat his evidence and the things he said to police with considerable caution.

95. [217]

    The version he gave to police was provided at a time when he had been arrested for murder. It exculpated himself from that crime. At the same time, it implicated the accused and asserted that the accused was solely responsible for the killing of Mr Russell.

96. [218]

    Further, on my assessment of his evidence, Mr Moore remains loyal (or as he put it in the conversations with Jodi Biles “staunch”) to the accused.

97. [219]

    John Fazio was the stepfather of Kieran Moore. He gave evidence of the some of the circumstances that led to Moore’s off the record conversation. Some of this contradicted the evidence of Moore. However, he said that he was upset at the time of the conversation and that Kieran looked upset and worried. He also gave evidence of his recollection of what Moore had said “off the record”:

98. [220]

    Initially, no objection was taken to this evidence. Part of “off the record” conversation was admissible as a prior inconsistent statement under s 106(2)(c). Otherwise, its only relevance seemed to relate to the credibility of Mr Moore and was not admissible (although it was relevant) for any other purpose: s 101A, 102 Evidence Act. I raised the question of the admissibility of the evidence and the use to which it was to be put. The Crown agreed (when asked by direct reference to the relevant sections of the Evidence Act) that the material was being adduced as an exception to the credibility rule (s 106) and that he then intended to use the things that Mr Fazio said that Moore said to prove that Simmons was guilty of murder (s 60). In other words, having got the evidence in as an exception to the credibility rule, he proposed to use that fact as an exception to the hearsay rule. After further discussion, Mr Young raised an objection. However, he was content for the evidence to be led but for the question whether its use should be limited to be determined later. The Crown subsequently indicated that he did not press the evidence to prove of the truth of the assertions contained in the “off the record” conversation.

99. [221]

    Apart from the details of the conversation I have set out above, Mr Fazio also described an occasion when he was visiting Kieran Moore in gaol. Tony Simmons arrived in or near the area but on the other side of a barrier of some kind. Mr Fazio overheard Simmons say to Moore “Don’t say a fucking word they got nothing.”

100. [222]

     In cross-examination, Mr Fazio denied that he told Mr Moore that he had to say something to the police and denied telling him that if Moore spoke to police they would send him to Bloomfield Hospital. He denied telling Mr Moore that if he helped the police that they would help him. He was “just trying to get him to tell them what he knew, if he knew anything.” He said that he told Mr Moore that he had to tell the police what he knew “for his own good” because “everyone is trying to crucify [him] and someone has got to try and help him. He wouldn’t want to help himself.”

101. [223]

     As to the conversation he overheard at the gaol, he said that he was two to three metres away and that there was a barrier or partition between he and Mr Moore and Mr Simmons. He said that the accused was with his parents. It was suggested that he “got this conversation wrong” to which he replied, “I don’t think so.”

102. [224]

     Steven Bell gave evidence of a conversation that he alleges occurred on Christmas day 2012. He says that he was in a motel room in Dubbo with his girlfriend (Barbara), the accused and Jodi Biles. In cross-examination, he acknowledged that a man called Daniel Crump was also present. He claimed that he had previously had discussions with the accused about the police suspicions surrounding the disappearance of Andrew Russell. He said that he “brung up the matter of the missing person we have talked about from time to time” and asked “jokingly did he knock him.” The accused replied “he’s gone” and Mr Bell thought that Jodi Biles said “he’s in the hills” or “he’s in the bush”.

103. [225]

     In cross-examination, Mr Bell admitted that he contacted police about this conversation in the hope “to help myself” in the context of being charged with serious drug offences for which he is yet to be sentenced. Mr Bell has discussed the matter with Detectives Fawkner and Hadley and hopes that they will bring his co-operation in giving this evidence to the attention of the sentencing Judge who deals with the drug matters. He is aware of the “discounts for assistance to authorities”. In other words, he knows that by giving evidence against the accused, his sentence for the drug offences may be reduced. For these reasons, Mr Bell is a witness whose evidence may be unreliable. He has a motive to lie or to distort the evidence.

104. [226]

     In addition to the fact that he is a witness who stands to gain from giving this evidence, and in relation to whom great caution must be exercised, it is also the case that none of the other people in the room have given evidence of this conversation. The Crown Prosecutor did not ask Jodi Biles about it and neither did senior counsel for the accused. Neither Daniel Crump nor Barbara was called to give evidence. As to Mr Crump, Mr Bell initially he said that he was in the room. He then said that he was “elsewhere”. He settled on the fact that he was in an “adjoining room”, namely the toilet. That is a remarkable detail to remember three years later. I do not believe it.

105. [227]

     Standing alone, Mr Bell’s evidence is close to worthless. However, I will take it into account along with all of the other evidence of things that the accused said or allegedly said about the disappearance of Mr Russell. The assertion that “he’s gone” is capable of demonstrating some awareness of the circumstances surrounding Mr Russell’s disappearance.

106. [228]

     Rachel Hadley was a friend of the accused and in a relationship with him briefly at some time before January 2013. Following an incident outside the court room in Bathurst was charged with an offence that she described as “intimidating a witness in the Supreme Court”. She objected to giving evidence on the ground that it may tend to prove that she had committed an offence. I upheld her objection but required her to give evidence and provided her with a certificate that the evidence could not be used against her (s 128 Evidence Act). Ms Hadley gave evidence of two incidents. Both concerned the witness Melissa O’Donoghue.

107. [229]

     The first occurred in 2013 when the accused was on remand. Ms Hadley visited him at Bathurst Gaol and ran into Ms O’Donoghue who was there to visit her partner Graeme Hinchcliffe. When she told the accused that she had seen Ms O’Donoghue, he told her that both O’Donoghue and Hinchcliffe were witnesses for the prosecution. Ms Hadley said that he told her to contact Ms O’Donoghue and “tell her don’t do it, don’t go”. Ms Hadley saw Ms O’Donoghue out the front of the gaol and said to her “Tony said ‘don’t go’”.

108. [230]

     The second incident occurred while Ms O’Donoghue was giving evidence in the trial proceedings. Ms Hadley had been in Court and saw Ms O’Donoghue outside. Ms O’Donoghue was crying and saying that “they made me. I didn‘t want to”. I take this to be a reference to giving evidence. Ms Hadley told Ms O’Donoghue “you have to do what you have to do”. Ms O’Donoghue “went on about something about Tony should say that he was big-noting himself, and I turned around to her and said ‘you say that’”. At that point “Detective Justin [Hadley]” intervened and said “Stay away from my witnesses”. Ms Hadley was arrested later that day and held in custody for a period. She was then charged.

109. [231]

     In cross-examination, Ms Hadley seemed to say that Ms O’Donoghue had suggested that she (O’Donoghue) would say that Tony was big-noting himself. One way or another, there is no evidence that the accused played any part in the approach to Ms O’Donoghue outside the courtroom. Further, the version provided by Ms Hadley as to the incident involved her comforting a distraught Ms O’Donoghue rather than attempting to intimidate or influence her. Where there is a conflict between her version and that of O’Donoghue I accept Ms Hadley’s account. As I have already indicated Ms O’Donoghue was not a convincing witness.

110. [232]

     As to incident at the gaol, Ms Hadley was cross-examined about the fact that she provided the version that the accused had asked her to approach Ms O’Donoghue at a time when she was under arrest and “very distraught being away from my [sick] child” and in circumstances where the investigating police agreed that this was “a way you could help yourself”. She agreed that the accused said that O’Donoghue and Hinchcliffe were “junkies and that’ll come out when they are in the stand”. She had not mentioned that part of the conversation in her evidence in chief. It is an important detail in light of the evidence that the accused gave on the subject.

111. [233]

     By consent, the statement of Joanne Leigh was read. She is Andrew Russell’s mother and said that she first became aware that he was missing toward the end of June 2009. She has not seen him since he was 21 years old (about 3 years before his disappearance) and had probably only spoken to him once in that time. She said that she had no ideas about where Andrew would be and “can only think that something bad has happened to him.”

112. [234]

     The statements of Kim Turner (concerning the tenancy at 9 Cripps Place, Kelso), Gregory Thomas (the step-father of Andrew Russell) and Judy Dearman (Mr Thomas’ partner) were also read.

113. [235]

     A number of witnesses gave evidence relating to records concerning the accused’s mobile telephone and the cell towers through which calls to and from that telephone were transmitted. The accused’s mobile number at the relevant time was 0401 208 774 (also recorded as 61 401 208 774). His carrier was Optus.

114. [236]

     Lynn Truong is a senior technical specialist with Optus. She produced a statement annexing charts showing the probable or predicted coverage in 2009 for seven cell towers maintained by Optus. Five of these were in or around Bathurst, one was in Blayney and one was in Penrith. She explained how a mobile telephone may connect to the closest tower but may connect to a different tower depending on the traffic at the relevant time. She explained that the call was then directed to a “switch centre” and then was picked up by a cell tower closest to the receiver’s ‘phone. She had not been asked to determine the coverage Optus provided to the town of Sofala.

115. [237]

     Albert Issa is a statement officer with Optus. He produced and gave some evidence about a document called a “web trace record” relating to the accused’s telephone. These show calls dialled as well as calls received whether or not they were successful or were answered. Where the call connected, there is a record of the duration of the call. The web trace records include a record of the cell tower through which the call was first received. I was left a little confused about these records because in some instances two lines of the record relate to one call and more than one cell tower is recorded. There was some evidence attempting to explain this. Mr Issa also produced “call charge records” for the same mobile telephone service. These records are based on the charges levied against the customer. It only records outgoing calls but access to the internet and text message are also recorded.

116. [238]

     Vipul Beri is a senior technical specialist with Optus. He gave further evidence about cell towers serving relevant locations. He produced a statement and documents relating to some five cell towers, three in or near Bathurst and two in or near to Dubbo. These charted the predicted or probable cell coverage for those towers as at 3 June 2009.

117. [239]

     Senior Constable Kim Reily is an analyst within the police force. She used to be stationed in Bathurst and provided a series of documents showing the answers to enquiries she had made relating to a number of telephone numbers thought, at some stage, to be relevant to the investigation. She also produced a spread sheet in which she reproduced portions of the web trace records and call charge records of the accused’s mobile telephone, along with a number of other records for other mobile ‘phones (the relevance of which was never made clear). She then superimposed the subscriber details of telephone calls thus recorded. This evidence was meant to provide clarity but, in many respects, confused an already perplexing body of evidence. For example, many of the individual calls were recorded over many lines of the spread sheet. There appeared to be no simple way to determine when an individual call related to one or more rows of data in the spread sheet. The evidence Ms Reily gave as to the when an individual cell tower was recorded (and why) was a little opaque. At first blush, the document appeared to be colour coded. However, on interrogation, the use of different colours throughout the spread sheet was meaningless. While the inclusion of the subscriber details was interesting and, in some instances, useful, I found this evidence to be otherwise unhelpful.

118. [240]

     While there are limitations to the use that can be put to this telephone evidence, it is safe to conclude:

     1. (1)

        Mr Simmons telephone was active late on the evening of 2 June 2009 and early on the morning of 3 June 2009. The ‘phone was used on many occasions from 10pm until a series of attempted calls at around 12:21am and a “download” at 12:23am. The ‘phone was then again active at 2:27am when there was a “download”.

     2. (2)

        All of the activity took place in or near Bathurst. All of the records show that the telephone was connecting to cell towers in or around Bathurst.

     3. (3)

        The telephone was not used between 12:23am and 2:27am on 3 June 2009. That gap of just over two hours is significant in the context of the possible last sighting of Andrew Russell (by Mr O’Neill) at around 11pm on 2 June 2009.

     4. (4)

        The telephone records suggest that Mr Simmons did not leave the Bathurst area during the day or early evening of 2 June 2009. All of the connections from 1am on that morning until 9:30pm that day suggest used Bathurst cell towers. There is no evidence in the telephone records that suggest that he went to Sydney or Campbelltown to purchase drugs.

     5. (5)

        While the evidence is unsatisfactory, there seems to be no dispute that Optus provided no coverage in or around Sofala. How far the coverage extends out of Bathurst, in the direction of Sofala, is not very clear but appears to be in the region of something like 20 km.

     6. (6)

        There was no telephone contact between the accused and Kieran Moore during the evening of 2 June 2009 and the following morning.

119. [241]

     On 16 April 2015 the Crown began to lead the evidence that was said, in opening, to be the critical evidence in the case. This concerned a covert investigation carried out between 18 September 2012 and 16 January 2013. The admissibility and detail of this evidence was considered in my pre-trial judgment known as R v Simmons (No 2) [2015] NSWSC 143. However, the evidence adduced in the trial proper was far less extensive, the parties having reached agreement as to the parts that were necessary to understand the context in which the accused made a number of admissions on 9, 15 and 16 January 2013. I am required to disregard the evidence received on the voir dire and act only on the evidence adduced in the trial proper. It has been greatly reduced in volume by agreement between counsel.

120. [242]

     The undercover operation was based around a conceit that the various undercover officers (UCOs) who interacted with the accused were members of, or associated with, a criminal organisation [REDACTED]. The UCOs played out a number of “scenarios” in which the accused participated, generally for payments of small amounts of money. [REDACTED].

121. [243]

     The scenarios (all of which were faked) included [REDACTED]. There were more than 20 such scenarios enacted over a four month period. [REDACTED]. He then had a meeting with [REDACTED].

122. [244]

     Throughout this complex sting operation, there was a focus on [REDACTED] and the accused was led to believe that the group had [REDACTED]. There were social occasions, such as a “crabbing” trip on the Hawkesbury and lunches at eastern suburbs restaurants, [REDACTED]. As the meeting with [REDACTED] approached, the accused was encouraged to speak openly about his criminal past and, in particular, about his involvement in the disappearance of Andrew Russell. [REDACTED].

123. [245]

     On most occasions the conversations between the UCOs and the accused were covertly recorded by surveillance device. It was in this context that the accused made admissions to the murder of Mr Russell on 9, 15 and 16 January 2013. I will provide a brief chronology of the scenarios before turning to the detail of the evidence given by the officers, the conversations covertly recorded by listening device and the admissions and other statements made by the accused.

Chronology of covert operation

1. [246]

   By September 2012, Bathurst detectives had reached a dead end in their investigation into the disappearance of Andrew Russell. At a meeting between the officer in charge of the investigation (Detective Sgt Fawkner) and the co-ordinator of the covert operation (Detective Sgt Lukacs) it was decided to employ the “unsolved homicide technique”. The technique “gives the impression of an established criminal organisation, recruiting new members”.

2. [247]

   First contact was made on 18 September 2012. Kypros Kypri (the prison informer who gave evidence earlier in the trial) introduced UCO 1 to the accused at a pub in Bathurst. The accused confirmed that he was interested in doing some work for UCO 1 and provided his mobile telephone number.

3. [248]

   On 25 September 2012 UCO 1 met the accused in Bathurst and enlisted his assistance [REDACTED]. The conversation was recorded covertly. [REDACTED]. The accused was paid $100 [REDACTED].

4. [249]

   On 27 September 2012 [REDACTED]. The accused was paid $200.

5. [250]

   On 3 October 2012 the accused met UCO 1 and UCO 3 at Penrith. [REDACTED].

6. [251]

   On 15 October 2012 [REDACTED].

7. [252]

   On 17 October 2012 the accused was engaged in what was described as a [REDACTED].

8. [253]

   On 22 October 2012 the accused travelled to Orange with UCO 3. No detail was provided of the activity that took place on this occasion.

9. [254]

   On 1 November 2012 another scenario was played out part of which involved the accused [REDACTED]. The accused was also introduced to UCO 4 who was said to be the [REDACTED] of the organisation. [REDACTED].

10. [255]

    On 8 November 2012 UCO 3 and the accused travelled to Oberon and met with another UCO and provided him with some [REDACTED].

11. [256]

    On 15 November 2012 the scenario involving the [REDACTED]. A small portion of the conversation that occurred on that date was tendered although there is no evidence of what took place [REDACTED].

12. [257]

    On 20 November 2012 a series of scenarios was played out. [REDACTED].

13. [258]

    On 28 November 2012, the accused and UCO 3 [REDACTED]. He was paid $2,000 for his involvement.

14. [259]

    On 4 December 2012 the accused was involved in the [REDACTED].

15. [260]

    On 6 December 2012 UCO 1, UCO 3 and the accused travelled to Newcastle. They met with UCOs pretending to be [REDACTED]. In the course of the trip back to Sydney, one of the UCOs made a comment about road works being a good place to dispose of a body. This seemed to prompt the accused to speak about the number of mine shafts in the Sofala area. He said:

16. [261]

    He referred to “fuckin’ old bud that went missing” and told UCO 1 and UCO 3 about the police investigation. He was asserting his innocence. He said “why would I do that [i.e. drop the body in a mine shaft], wouldn’t it be easier if I dig a hole and bury him.” He spoke about stories going around town that suggested he had “hacked him in pieces and fed him to the pigs and fuckin’ gutted him and hung him, there is some hectic stories going around man. What the fuck.”

17. [262]

    On 12 December 2012 there was a meeting with a UCO (UCO 9) [REDACTED]. Neither party explored this scenario in any detail and neither the recording of the conversation nor a transcript was tendered. This is significant in light of evidence given by the accused that the prosecution says was a lie.

18. [263]

    On 13 December 2012 the accused and a large number of UCOs went out on a boat on the Hawkesbury River for a social occasion. This was described as the “crabbing trip”. On this occasion there was talk of another UCO (UCO 14) having a meeting [REDACTED].

19. [264]

    On 20 December 2012 and 3 January 2013 there were further scenarios played out designed to show the accused the “breadth of the organisation and that he was becoming more involved in the organisation”.

20. [265]

    On 8 January 2013 UCO 3 told UCO 1 and the accused that [REDACTED].

21. [266]

    On 9 January 2013 [REDACTED].

22. [267]

    On 9 January 2013, the accused spoke more openly about the investigation of the 2009 disappearance of Mr Russell and his involvement in the events. He raised the matter after being complimented for staying calm on hearing the news [REDACTED]. It was otherwise spontaneous. The conversation began with the accused referring to what the police believed or accused him of. However the accused quickly began to say that he was actually involved in the crime. UCO 9 interrupted the conversation but UCO 1 re-introduced the topic once UCO 9 had left the car. Mr Simmons claimed that he and an accomplice (“Kieran”) pushed the victim off a cliff and later put the body in a mine shaft near Sofala. He spoke of the car or cars that were used in the offence and steps that were taken to cover up the murder.

23. [268]

    On 15 January 2013 the accused was told “you’re up bro” and that he would be meeting with the [REDACTED] in the following day [REDACTED]. He travelled to Sofala with UCO 1 and had a lengthy conversation with him. UCO 4 travelled separately but was present during part of the conversation. The accused took the UCOs to the paddock where he said that he had disposed of the body of Mr Russell in a mine shaft. This was the area that the Court visited on the view at Red Hill Road, Upper Turon. The accused indicated a location under a willow tree on top of a steep and apparently eroded part of the creek bank.

24. [269]

    The accused also attempted to take UCO 1 to a cliff near Wallaby Rock from which he said that Mr Russell was pushed. However, the car in which they were travelling got stuck on rocks as they tried to cross the river.

25. [270]

    The accused made a number of admissions as to his involvement in the disappearance and death of Mr Russell in the course of the lengthy conversation with UCO 1. The undercover officers stressed the importance of being honest [REDACTED] when he met him at the following day.

26. [271]

    On 16 January 2013 the accused was introduced to UCO 10 who was playing the role of the head of the syndicate [REDACTED]. The meeting took place at a hotel room in Sydney [REDACTED]. In the course of the conversation, the accused made a number of assertions and admissions concerning his involvement in the disappearance and murder of Andrew Russell. The deceased was named in the course of that conversation as “Andrew” and reference was also made to an accomplice (Kieran Moore).

27. [272]

    The evidence showed that the accused was regularly paid relatively small sums of money for his services during the undercover operation. On one occasion [REDACTED] he was paid $2,000. Otherwise the payments were amounts of $100 to $200. A schedule of payments showed that he was paid around $6,700 between September 2012 and January 2013.

Evidence of undercover police officers

1. [273]

   Detective Sgt Lukacs was the co-ordinator of the covert operation and the first witness to give evidence of the covert investigation. He provided an overview of the investigative technique, its objectives and briefly outlined the chronology of the scenarios played out.

2. [274]

   On two occasions in his evidence, Sgt Lukacs said that a particular scenario was played out in a way that demonstrated that the group was not violent. For example, he said that the collection [REDACTED]:

3. [275]

   Again, when speaking of the [REDACTED], he said:

4. [276]

   I am not convinced that the accused would have been left with the impression that the group’s activities might not encompass violence. In fact, the nature of their activities and the recorded conversations supported the opposite conclusion. They were involved in a large [REDACTED]. They were also involved in large [REDACTED]. The “core business” of [REDACTED] (as it was described by Sgt Lukacs) must necessarily involve some [REDACTED]. The accused was involved in [REDACTED]:

5. [277]

   On 6 December 2012, while travelling with the accused from Newcastle to Sydney and passing some road works, UCO 1 said that it was a “good time to fucking throw people in there if you need to and cover them up. The best man when the highways are getting built or fuck …” This observation is inconsistent with the suggestion that the group enforced its position by non-violent means. It was in that context that the accused first mentioned the police investigation into the disappearance of Mr Russell.

6. [278]

   [REDACTED]. It was then that the accused began to make admissions to the killing of Mr Russell.

7. [279]

   Finally, in his meeting with [REDACTED] on 16 January 2013, he was told that the group need “someone that can get their hands dirty”. Of course, that observation is less relevant because the accused had already made the admissions. However, it reflected the attitude of the group as it had been presented to the accused.

8. [280]

   UCO 3 was involved in a number of scenarios and, along with UCO 1, was one of the two UCOs most closely involved with the accused. UCO 3 was involved in meeting and travelling with the accused and in playing out a number of the scenarios by which the accused was tricked into believing that he was dealing with a sophisticated criminal gang. Throughout his interaction, he was concerned to “build rapport” with the accused:

9. [281]

   Ultimately, UCO 3 played the critical role of convincing the accused that he [REDACTED]. This was designed to convince the accused that the gang was capable of [REDACTED] these types of situations. [REDACTED]:

10. [282]

    UCO 4 pretended to be the second in command of the organisation. He had direct contact with the head of the organisation and met the accused only after the latter had proved himself to UCO 1 and UCO 3. UCO 4’s primary importance was to create an impression of a hierarchy within the gang and to motivate the accused to conduct himself in such a way to ensure his progression in the gang. UCO 4 gave evidence:

11. [283]

    UCO 4 gave evidence of the purpose of a scenario enacted on 3 January 2013 when the accused [REDACTED]:

12. [284]

    UCO 4’s last contact with the accused was on 15 January 2015 when the accused showed the UCOs the location on the Red Hill Road where he had disposed of the body. He had to return to assist the pair when they got stuck on the rocks while trying to cross the Turon River near Wallaby Rocks. His evidence concerning 15 January 2015 included:

13. [285]

    UCO 4 threw down some markers (20 cent coins wrapped in foil) at the location where the accused said he had disposed of the body. This allowed him to lead other Detectives to the site later that day. In evidence at the trial UCO 4 had limited recollection of the topography and landscape features of this site at Red Hill Road.

14. [286]

    UCO 1 was the undercover operative most closely involved with the accused. He was involved in most, although not all, of the major scenarios enacted in the course of the investigation. UCO 1 recruited the accused through contact with the witness Kypros Kypri. UCO 1 introduced the accused to the other UCOs. The accused spent many hours with UCO 1 driving from location to location where the scenarios were played out. A lot of their dialogue was recorded by listening device. UCO 1 dominated most of the conversations and much of the material was only peripherally relevant. UCO 1 characterised much of this material as “rapport building”.

15. [287]

    A regular theme of the conversations with the accused was the high value that the criminal organisation placed on [REDACTED]. UCO 1 gave this evidence:

16. [288]

    One of the scenarios involved a potential gang member (UCO 14) [REDACTED]:

17. [289]

    In one of the car trips (on 9 January 2013) the accused showed UCO 1 a number of photographs on his phone. UCO 1 gave the following in evidence:

18. [290]

    On 15 January 2015 UCO 1 and the accused drove to Sofala where the accused showed him (and UCO 4, who was following in another car) the location on Red Hill Road where he said that he had disposed of Mr Russell’s body in a mine shaft. UCO 1 described an attempt to access the area behind Wallaby Rock, where the accused claimed to have pushed Mr Russell from a cliff:

19. [291]

    Under cross-examination, UCO 1 was asked about his understanding of the location of the murder site:

20. [292]

    In cross-examination UCO 1 gave the following evidence as to the site on Red Hill Road:

21. [293]

    The transcript does not record any conversation between UCO 1 and the accused that the riverbank itself has changed although the recording shows that the accused commented on changes to the area and made a number of comments on the way to and from the site as to flooding in the area around Sofala. I could not hear the words that to which UCO 1 referred but it is not a matter of great moment.

22. [294]

    UCO 1 gave evidence that the accused was able to locate the mine shaft by drawing an imaginary line between two sheds on a nearby property and a willow tree on the top of the riverbank. He gave further evidence under cross-examination that the accused told him the mine shaft was in the blackberry bush under the willow tree as it stood then in 2013:

23. [295]

    The regular car trips gave UCO 1 the opportunity to observe the accused. Under cross-examination UCO 1 denied that he observed the accused under the influence of drugs:

24. [296]

    UCO 1 maintained that he did not believe the accused was using or under the influence of drugs when they were together but conceded that on a number of occasions the accused was either very drowsy, falling asleep, “fucked” or “on the nod”. UCO 1 was also either told by the accused or overheard that the accused was involved in drug supply activities.

25. [297]

    UCO 10 played the role of the leader of the criminal organisation. The most extensive admissions were made in the course of his meeting with the accused on 16 January 2013. His evidence did not add very much and he was not cross-examined.

THE OFFICER IN CHARGE

1. [298]

   Detective Sergeant Fawkner was the police officer in charge of the investigation and the final witness called in the prosecution case. He provided an overview of the investigation and explained the matters that caused him to treat the investigation as a homicide and ultimately to charge the accused with murder. A number of exhibits, tying up loose ends and clarifying parts of the evidence, were tendered through Mr Fawkner.

Mr O’Neill’s identification

1. [299]

   Two of the exhibits were relevant to the important identification evidence of Mr O’Neill. The first (Ex Z) was a document from the police computer system. It clarified that the 000 call made by Mr O’Neill was recorded on the police system at 22:56pm on 2 June 2009. This means that the call itself must have been made a short time before that. The document recorded that Mr O’Neill described the man he saw as Caucasian, 20 years old and “very IP” (that is, intoxicated person). He was wearing track pants and track jumper. The document established that police attended the scene between 23:05pm and 23:08pm. Police patrolled the area but no person was located.

2. [300]

   The second document (Ex PP) was an investigator’s note dated 25 June 2009. It showed that Mr O’Neill attended Bathurst Police Station and viewed a photograph (Ex A in the trial) and said he was “fairly certain that this is the IP male he saw on 2/6/09”. There is a handwritten note on the second page of the document which described the person’s clothing as a “light blue ? tracksuit.”

3. [301]

   Detective Fawkner said that there was no evidence as to why Mr Russell would have travelled to Kelso that night apart from some rumours that he may have attended a party. He said the only other evidence of sightings of Mr Russell in Kelso were Ms Coloton’s sighting on 16 or 17 June and the evidence of Ian Wilson who said that he saw him walking near his house some (non-specified) time later.

Investigations relevant to whether Mr Russell is dead

1. [302]

   Detective Fawkner gave evidence that the last access to Mr Russell’s bank account was on 2 June 2009. Centrelink payments continued to accumulate in his bank account but there were no withdrawals of money after 2 June 2009. Enquiries with both Medicare and at hospitals proved negative. This fact must be considered in combination with the evidence concerning Mr Russell’s significant health problems. This came from his family and friends, Mrs Coloton and four medical reports.

The accused’s statement to police in 2009

1. [303]

   A statement signed by the accused on 24 July 2009 was tendered through Detective Fawkner. In that statement, the accused said that the last time that he saw Mr Russell was on around 25 May 2009. That was a date when both men were supposed to attend court. The accused told police that his brother William approached Mr Russell on his behalf to arrange to retrieve some property from the house at Cripps Place. He gave a version of the March assault which was, at least, a gross understatement of what had occurred. He told police that he did not know where he was on 2 June 2009 although he gave an account of his movements on his birthday (5 June). He said that he had not spoken to Jamie Waring, Kelly Burns or Jamie’s new girlfriend Jodie.

2. [304]

   He told the police that he and a mate (“Corey Johnson”) burned some clothes in the driveway at “Andrew’s house” which I take to be the premises at Cripps Place, Kelso. He also said he knew nothing about a blood stained blanket that had been found in a wheely bin. He said that it was probably from the night they had the fight. Neither of these details was otherwise referred to in the trial. The accused was not cross-examined about them and there was no evidence as to when the clothing was burned and in what circumstances. I assume that these matters are not considered to be relevant and that the Crown does not rely on them in advancing its case.

Forensic examinations

1. [305]

   Mr Fawkner confirmed that no relevant forensic evidence had been located. Examinations were conducted at the premises at Slim Street and Cripps Place and on two cars. The cars were the white Hyundai owned by Ms Biles and used by the accused and another car that used to be used by Tony Simmons. There was no evidence led in the trial as to any examination of Kieran Moore’s green VT Holden or as to how it was disposed of. There was some evidence concerning the disposal of Mr Moore’s car led on the voir dire (see Simmons (No 2) at [100](vi)) but I cannot use that evidence in considering my verdict.

Attendance at relevant sites

1. [306]

   Mr Fawkner attended the site on the Red Hill Road where Mr Simmons took the undercover police (and which was visited on the view). He said that there was no police presence immediately after the accused took UCO to that location because the accused’s brother had been seen in the area.

2. [307]

   Mr Fawkner did not attend Wallaby Rocks until after he was examined on the issue in the course of the voir dire. Ultimately, there is no clear evidence as to the precise location of the cliff from which the accused claimed to have pushed Mr Russell. The detective described crossing the Turon River at the spot where the UCOs had become bogged or stuck on the rocks. This is to the east, or Sofala side, of the Wallaby Rock cliff face and swimming hole. It was a site visited by the Court on the view. Having crossed the river the road veered around to the right and up the hill behind the Wallaby Rock. At a certain point the detective stopped the car and said that he could walk around 15-20 steps to the edge of the cliff. This location was “only a quarter of the way up”. He indicated the approximate location on a photograph that is in evidence. This was not the large cliff at Wallaby Rock. That cliff cannot be accessed by vehicle. It is a lower cliff above a swimming hole.

Medical records relating to Mr Russell

1. [308]

   Reports describing Mr Russell’s parlous medical condition were tendered. In light of these records, the absence of any record that he accessed Medicare or any hospital is surprising if he is still alive. The medical records supported the evidence of Mr Herbert, Ms Wallace and Mr Waring as to Mr Russell’s ill-health.

2. [309]

   The hospital records relating to the March assault were also tendered. These showed that Mr Russell discharged himself after one or two days. He sustained a number of soft tissue injuries – bruises and the like. He sustained no broken bones and no fractures. He was not admitted to intensive care. He was in hospital for 1 or 2 days; 3 days at the outside.

No stolen or burnt out cars

1. [310]

   The detective gave evidence that he could find no evidence of any report of a stolen Holden Commodore in the Bathurst area on 2-3 June 2009. As to whether there was a burnt out car reported or located in the area nominated by the accused he said “there was no indication that that incident occurred.”

Miscellany

1. [311]

   A number of transcripts of conversations recorded by surveillance devices and telephone intercepts were tendered through the officer in charge of police. Neither counsel made any submissions on these matters other than in a quite general way. Where relevant, I have incorporated these into the descriptions of the scenarios played out during the undercover investigation. There was also some still images taken from CCTV footage during the course of the undercover investigation.

2. [312]

   A number of maps, sketch plans and satellite photographs were tendered.

3. [313]

   Detective Fawkner explained the absence of a witness called Jodie Wright. From other evidence in the case, Ms Wright had been responsible for some of the rumours that spread around town. Also, she was in some form of relationship with the witness Waring and in one (hearsay) version of the events, Mr Russell’s interest in her had caused Waring to become jealous and to assault Mr Russell. There was evidence from Ms Wright’s mother earlier in the trial in which Mr Russell had expressed some romantic interest in Jodie. I need not, and must not, speculate as to what Jodie Wright might have said had she given evidence.

4. [314]

   Detective Fawkner was unable to obtain any further information about the date of Grace Ahearn’s 16th birthday party and there were no reports of police attending such a party between 1 and 20 June 2009.

5. [315]

   Records were tendered relating to the rainfall for Bathurst on 2 June 2009 and the flow of water in the Turon River at Sofala at relevant times.

Cross-examination of Mr Fawkner

1. [316]

   Mr Fawkner was cross-examined carefully as to his attendance at Wallaby Rock and his evidence that he was able to access a cliff by vehicle. A satellite derived sketch plan was tendered as well as a satellite photograph from Google maps. It was put to the detective that there was no place where the track or road provided access that close to the edge of the cliff. It was put that wherever one stopped the vehicle, it was necessary to scale a steep incline to access the ridge line and cliff face. The witness was examined closely on the photographic evidence in relation to the length and location of the ridge line. He maintained his evidence that the cliff could be accessed in the way he described.

2. [317]

   I was not taken across the Turon River in the course of the view and it is not possible from the maps, satellite images and photographs to come to any conclusion based on the objective evidence as to the accessibility of the cliff’s edge from the road or track. There was nothing in the detective’s evidence that caused me to doubt what he was saying. I accept therefore that the track behind Wallaby Rock does provide access to the lower-lying part of the cliff face above the water hole at Wallaby Rock. There is no evidence as to the height of this part of the cliff but it is lower than the high cliff to the right (facing the water hole).

3. [318]

   The detective agreed that the accused’s telephone calls were being intercepted during the course of the undercover operation. He agreed that there were “some conversations about drugs”.

4. [319]

   Most of the meetings between the accused and the UCOs were subject to electronic surveillance. For the most part, the conversations are not directly relevant to the murder charge. Most were not led in evidence in the trial although they were led in full on the voir dire. I disregard the evidence tendered on the voir dire and note that small portions of some of the conversation were tendered by consent. The critical conversations occurred on 6 December 2012 and 9, 15 and 16 January 2013.

6 December 2012: First reference to the police investigation and rumours about the accused

1. [320]

   On 6 December 2012, after some months of [REDACTED] between the accused and the undercover operatives, the accused raised for the first time (on the evidence in the trial) the police investigation into the disappearance of Mr Russell. This was in response to the comment by UCO 1 on the trip back from Newcastle about covering up bodies under new road works (“good time to throw people in there if you need to and cover them up – the best (man) when the highways are getting built”). The accused responded “the mine shafts around my area but heaps of them blow up” and “Dead set yeah. Fuck. Around my area is where like all the gold rush and that was bro.” UCO 1 said “… so it’s good for that shit, yeah”. The accused replied:

2. [321]

   UCO 1 asked “which old bud?” and the accused referred to “old bud that went missing”. The terms of the conversation suggests that there had been some earlier discussion but there is no evidence of this. The accused went on to dispute the police theory, saying that it would be easier “to dig a hole and bury him”. He also spoke of the “stories going around” including a story that he had “hacked him up into pieces and fed him to the pigs”. UCO 1 said (in reference to the mine shafts) “it’s good to know they’re out there” and “I might get you to show me one day.”

3. [322]

   While the accused made no admissions, and indeed denied that he had done what the police suspected of him, the conversation of 6 December 2013 represented a breakthrough in that the accused began to speak of Mr Russell’s disappearance.

4. [323]

   The Crown submits that this evidence may be used as evidence of a consciousness of guilt. While the evidence is capable of being used in this way, there are two reasons why I must be cautious in doing so. First, the comment was responsive to the statement of the UCO. Secondly, the comment was similar to something that the accused allegedly made to Luke Salter many years earlier. Mr Salter said that while they were riding in the Sofala area the accused said that the “mine shafts [were] so secluded that it’s a good place to get rid of someone”. That comment was made some time before the disappearance from Mr Russell.

9 January 2013: First admissions made by the accused

1. [324]

   The topic did not arise again until 9 January 2013. By that date the group was playing out the scenario whereby the group was trying to [REDACTED].

2. [325]

   On 9 January 2013 UCO 1 and the accused were waiting in a car to meet with [REDACTED]. The scenario was introduced the previous day. While waiting for UCO 9, UCO 1 discussed the plan to assist UCO 3, [REDACTED]. UCO 1 praised the accused for staying calm, for being “fucking good with that” and for “not freaking out on being told that [REDACTED]. The accused said “I’m usually good with that shit, bro” and “fucking cunts always go missin’ around my area”. He went on:

3. [326]

   The conversation was interrupted by the arrival of UCO 9. When she left, UCO 1 asked the accused “what were you sayin’, bro, before?” The conversation continued:

4. [327]

   The topic was re-introduced in the context of the need to “detail” the car that [REDACTED]:

15 January 2013: Admissions made at or near the scene of the crime

1. [328]

   On 15 January 2013, the accused and UCO 1 drove from Penrith to Sofala and back again. A lengthy conversation took place in the course of the journey. It took place over around 7 or 8 hours. I listened to almost the whole of the recording of the conversation. The parties agreed that certain parts at the end were not relevant and contained long silences. The accused and UCO 1 stopped at Lithgow where they met with UCO 4. UCO 4 then followed them to Sofala in a separate vehicle.

2. [329]

   The accused took UCO 1 and UCO 4 to a paddock that runs between the Red Hill Road and a watercourse known as the Tobins Oaky Creek. This was the final site that the Court attended on the view. The accused identified a willow tree under which he said there was a deep mine shaft where he and Kieran Moore had deposited Mr Russell’s body. The area was overgrown by blackberry bush and the trio could not access the mine shaft. Having provided the accused some advice as to how he should behave when he met [REDACTED] the next day, UCO 4 left on the pretence that he had other business to attend to in Mudgee. The accused then directed UCO 1 to the area known as Wallaby Rock. This is another site visited on the view. It was in this general area that the accused claimed that Mr Russell had been pushed from a cliff. However, the car became bogged or stuck as they tried to cross the Turon River. It was necessary to obtain assistance from some strangers who seem to have been camping by the waterhole at Wallaby Rock. As a result, UCO 1 was never shown the precise location where the murder took place.

3. [330]

   UCO 1 did most of the talking, and while most of that talk can properly, if respectfully, be described as nonsense, the accused made detailed admissions in the course of the day. I will set out some of the relevant admissions.

4. [331]

   On the journey to Sofala, the following conversation were recorded:

5. [332]

   There was also reference to the search of the Sofala tip. While looking for the mine shaft in the paddock on Red Hill Road, the following conversation (or snippets thereof) was recorded:

6. [333]

   In the area of Wallaby Rock, where the car became bogged while trying to ford the river, there was little relevant conversation as there was an understandable pre-occupation with getting the car out of the rocks where it was stuck. However, as they were leaving the area, UCO 1 asked “can you see [the cliff] from here?” and the accused said “no”.

16 January 2013: Admissions made to [REDACTED]

1. [334]

   On 16 January 2013 the accused was introduced to UCO 10 at a hotel room in Sydney. [REDACTED]. In advance of the meeting, both UCO 1 and UCO 4 had stressed to the accused the need to tell [REDACTED] the truth about his criminal past and not to hide anything. [REDACTED]. In that context, it might be thought that the accused would inevitably repeat the things that he had told UCO 1 and UCO 4 on 9 and 15 January 2013. Whether or not that is so, he made further detailed admissions that constitute a confession to the murder of Mr Russell and the disposal of his body.

2. [335]

   The first relevant things he told UCO 10 concerned the March assault of Mr Russell. He said that he had “put him in intensive care for 6 weeks” and that his girlfriend “took the rap” for him. He went on to say:

3. [336]

   UCO 10 asked the accused to tell him more about the occasion when his “missus” took the rap for him:

4. [337]

   UCO 10 told the accused he wanted to ensure that things in the accused’s past would not [REDACTED]. The accused was then encouraged to provide detail of the homicide. It is necessary to set out that conversation in full:

5. [338]

   UCO 10 then sought further details:

6. [339]

   If accepted, the things that the accused said to UCO 10 constituted a complete admission to the murder of Andrew Russell. There is no doubt that he made the confession. The question is whether it is reliable.

7. [340]

   The investigating police entered the hotel room immediately after the conversation with UCO 10 concluded on 16 January 2013. The accused was arrested. An audio and video recording of the arrest was tendered in evidence. The accused expressed surprise at his arrest and said “I was only talking shit”. He claimed to have known that he was being set up “from the start”. That seemed to be a reference to the conversation with UCO 10 although it is ambiguous. He explained why he had made the admissions to the undercover police:

8. [341]

   The accused claimed that he had “didn’t say Andrew Russell at all” and Detective Fawkner said “you did”. The detective was correct. The accused mentioned the full name of the missing man on 9 January 2013 when he said that the police asked him “Do you know anything about this Andrew Russell?” and he responded “What I told youse already. I don't know shit.”

9. [342]

   It could be said that the accused was defensive and quick to make excuses for saying the things that he had said. On the other hand, he immediately asserted that he had fabricated his admissions to “talk himself up”.

10. [343]

    Mr Simmons gave evidence over 3 days on 30 April, 1 May and 4 May 2015. He denied that he had “anything to do with the death or disappearance of Andrew Russell”.

The March assault

1. [344]

   The accused said that he had been living at 3 Cripps Place Kelso for a couple of months leading up to the March assault. He was living with Mr Russell, Jodi Biles and two of their children. One night (by necessary inference, 20 March 2009) he was at party with Jakob Peters and received a ‘phone call from Jodi Biles. She was crying and said that Andrew threw her out, locked her outside the house and locked two of the kids inside the house. He came home and the incident resolved without physical violence. He left saying “if anything else happens, it will be on”. He then received a further ‘phone call because “Andrew was apparently carrying on”. He returned home to discover that Andrew had hit Jodi and there was a bit of “a scuffle” between he and Andrew. He said that he had hit Andrew on this occasion. There was then some sparring because Andrew wanted the accused to teach him to fight. They then had a “session” which is to say they drank alcohol and smoked some cannabis.

2. [345]

   The accused said that by that stage Kiara White was at the house and an incident then occurred between Ms White and Mr Russell. The accused intervened and that was the point at which the accused caused injuries to Mr Russell by punching him and kicking him. The police and ambulance attended. The accused agreed that a photograph was taken earlier in the night but said that it merely depicted he and Andrew with their “arms around each other and thumbs up”. He showed this photograph to the police. He was unaware of any other photograph and denied that there was a video of the incident.

3. [346]

   The accused did not see Andrew Russell say anything to Jodi Biles but heard about the earlier incidents from Jodi. He said that they went to his mother’s house in Bathurst that night and then moved to Blayney until he was arrested and placed on an apprehended violence order (AVO) as a result of a fight between he and Jodi. He described going to Court and seeing both Jodi and Andrew in the months that followed and providing a statement on 24 July 2009 to the police investigating the disappearance of Mr Russell.

4. [347]

   The accused then gave evidence of being arrested for a number of drug offences and receiving a three year sentence with an 18 month non-parole period. He was in gaol from 18 February 2011 and released to parole on 17 August 2012. He gave evidence about where and with whom he lived at various times and the cars that he and others owned.

The accused’s response to alleged admissions to friends and similar evidence

1. [348]

   Mr Simmons denied a number of the admissions allegedly made by him to various witnesses.

2. [349]

   He denied saying “I did it” to Stephanie Langbien or making any similar admission to her concerning the disappearance of Mr Russell. He denied threatening her by reference to Mr Russell’s disappearance or saying that it was a secret she would carry to her grave. He admitted that they fought and that they spoke about rumours that were circulating concerning his involvement in the disappearance of Mr Russell. After he got bailed on the drug charges he explained to her that his telephone was “tapped” because of the police investigation. He said that Ms Langbien was using drugs and that this sent her a “little bit silly”.

3. [350]

   He denied the terms of the conversations attested to by Melissa O’Donoghue and Graeme Hinchcliffe. He agreed that while the pair had lived with him and Jodi, there had been conversations about Mr Russell’s disappearance and about the March assault and confirmed that he was aware of “various stories circulating about how Mr Russell had come to disappear”. He remembered the conversation in question and confirmed that he and Mr Hinchcliffe were at the table having a smoke (of cannabis). He thought that Melissa may have been in the loungeroom with Jodi but then thought that she may have been at the table because she usually smoked cannabis with them. He thought that everybody except Jodi were smoking cannabis. He and Hinchcliffe were drinking alcohol but Melissa was not because “I think she was pregnant”. He said that they asked whether he had anything to do with Mr Russell’s disappearance and he replied:

4. [351]

   He was also asked about whether there was a discussion with Hinchcliffe and Morrison about anybody using a table leg and he said:

5. [352]

   He was then questioned about the allegation that he had asked Rachel Hadley to approach Paula Morrison to ask her “not to go” (as it was put by Ms Hadley). He denied this. He said that he told Ms Hadley that “they are just junkies” and that he wanted them to come to Court because they would be exposed as liars and “scumbags”.

6. [353]

   Mr Simmons agreed that he had confronted Hinchcliffe while they were in gaol because Hinchcliffe was denying giving evidence. The accused said that “it’s as serious in a gaol to falsely accuse someone of being a dog as it is to in fact be one”. “Dog” is gaol slang for an informer or prosecution witness. Hinchcliffe was “telling everybody that I was running around saying he wrote a statement” because “he wanted the boys to get me.” In the course of the conversation he threw Hinchcliffe’s statement out of the window into the yard and other prisoners read it.

7. [354]

   He denied suggesting to Ms Hadley in court that she should approach Melissa O’Donoghue during the course of the latter’s evidence. As I understand it, Ms Hadley did not suggest in her evidence that he had done so although it may be an available inference from Ms O’Donoghue’s version of events.

8. [355]

   He said that he did not remember Ms Biles telling him that Kieran Moore had said things [about the disappearance of Mr Russell]. However, he agreed that Jodi, Kieran and he used to spend time in his mother’s garage drinking and smoking. He did not deny this conversation and agreed he that he probably told Jodi to take no notice of Kieran because he was crazy and he was drunk.

9. [356]

   He agreed that there had been a conversation with Ms Biles and her Nan in which he had repeated the story about Jamie Waring putting Mr Russell in a Wheelie bin at the Sofala tip. This conversation occurred in the kitchen of the house at Bannerman Street. He said it was based on rumours he had heard but he could not identify who told him because “there was heaps of people saying different stories.”

10. [357]

    He denied saying to Jodi Biles over the telephone while he was in gaol that he had killed Andrew “for her” and was taken to a transcript of a call and agreed (as did Ms Biles) that there was nothing in the transcript that supported the suggestion that he made such an admission over the ‘phone. As to the alleged admission during a gaol visit he said that Ms Biles had asked him if he had killed Andrew. He took this to be an accusation and proof that she had sided with those who suspected him. He told her to “fuck off” and that is the reason that she left the visit in tears.

11. [358]

    The accused provided a very different account of the conversation with Luke Davis that Davis alleged occurred in the gaol. The accused said that Davis said something about Jamie Waring’s involvement and that Davis had witnessed the incident. However, the accused was later told that this could not have occurred because Davis was in gaol at the time.

12. [359]

    The accused denied the details of the conversation alleged by Kypros Kypri but agreed that he had told some of the other boys (in gaol) that his ex (Jodi Biles) was calling him a murderer on the ‘phone and was “carrying on like a dick head”. He agreed that Kypri may have overheard this but denied that he had any other conversation with Kypri about Mr Russell’s disappearance.

13. [360]

    The accused denied the evidence of Jamie Bell that he and Jodi Biles said things on Christmas Day that suggested that they knew the whereabouts of Mr Russell (that he was “gone” or “in the hills”).

14. [361]

    The accused agreed that he asked Jodi Biles to contact Kieran Moore on the day of his arrest but said that it was merely to pass on the fact that he had mentioned his name in the conversations with the undercover police. As to the conversation when he was on remand, the accused could not remember exactly what he had told her but it was to the same effect as the story he told the undercover police. He told her it was a lie and suggested she get on with her life.

15. [362]

    Mr Simmons denied the incident described by Paula Morrison that allegedly took place near the entrance of the Coles Supermarket. He was asked whether he had approached Paula Morrison at some other time while in the car with Will Peters and Jamie Waring. He denied this and said that he had never been in a car with Mr Waring.

Movements around 2 June 2009

1. [363]

   The accused was asked about a trip to the Sydney Casino around 2 June 2009. He was unable nominate the date of this trip but did not think that the visit was before 2 June. He later said that he was “pretty sure it was way before June”. In answer to a question from me he said that he did not know whether it was before or after his birthday (5 June 2009) but was sure that the trip did not take place on his birthday because he was at his mother’s house for most of that day. He said that he, Kieran Moore and Jakey [Peters] drove to Sydney in Kieran’s car. They drove around for a while and visited Kieran’s aunty and Jakob’s brother at Prospect. They then went to the Casino “for a little bit”. Jake was under age so the accused and Mr Peters “kicked around” in an area I take to be something like a video game arcade. It was not a gambling area. Once Kieran came out of the Casino, they drove around Kings Cross. He said “we were off our heads”, having consumed speed and ice. They did not sleep that night. They visited Kieran’s aunty and then drove back to Bathurst. They got back to Bathurst at “maybe” 2 o’clock in the afternoon. They dropped Jakob off at the fruit shop on Sydney Road and he and Kieran went to Lena’s place. Later he thought that they drove Jakob to a party “down View Street”.

2. [364]

   The accused was taken carefully through the telephone records in an attempt to reconstruct his whereabouts on the 2 and 3 June 2009. He said that he had “no idea” what he was doing at various times and could only speculate as to why he made the various calls recorded in his ‘phone records. As to entries referring to Internet browsing, downloading and similar, he said that he was probably using “Myspace” because that was the main reason he used his ‘phone to access the internet at that time of his life.

The explanation for the admissions to undercover police

1. [365]

   The accused gave evidence of his recruitment by, and involvement with, the undercover police between September 2012 and January 2013. He said that he used “pretty much the whole lot” of the money that he received from the undercover officers on drugs. Other evidence showed that this was around $7,000. A series of transcripts of telephone intercepts were tendered showing Mr Simmons’ attempts to purchase and acquire methylamphetamine. The accused said that he was injecting the drug to increase its impact.

2. [366]

   Some of calls appeared to show that the accused intended to supply the drugs but the evidence is fairly strong, and I am convinced, that the accused was using substantial amounts of drugs at the time of the police operation. However, I am also satisfied that he was capable of functioning and that he did not make a false confession as a direct result of his drug use.

3. [367]

   The accused said that his confessions to the undercover officers on 9, 15 and 16 January 2013 was “all a big sham … like a lie; like a big lie”.

4. [368]

   The accused was asked about the fact that his first reference to burying bodies in mine shafts around Sofala occurred on the trip to Newcastle when UCO 1 suggested that road construction works were a good place to dispose of a body. He responded:

5. [369]

   The trip to Newcastle was on 6 December 2012. The [REDACTED] UCO 9 and the first meeting appeared to be on 12 December 2012. A transcript of a conversation on 3 January 2013 was tendered and this showed that UCO 1 told the accused:

6. [370]

   The accused was asked “why were you perpetuating this scam?” and replied:

7. [371]

   The accused claimed that the area he showed the police on the Red Hill Road was chosen randomly as they drove along and was based on the presence of blackberry bushes. He knew that the “city slickers” would not venture into the blackberries. Similarly, he had not given much thought to what he would show UCO 1 if they had managed to cross the river near Wallaby Rock.

Cross-examination of the accused

1. [372]

   The accused was cross-examined by the Crown Prosecutor for approximately two half-days. I have considered the whole of the cross-examination and the impression that the accused made upon me at the time. I will not attempt to summarise all of the cross-examination.

2. [373]

   The accused confirmed that he told the UCOs lies because he believed they were members of a criminal gang that he wanted to join. He wanted to make a better life for himself and get away from Bathurst. He agreed that is what told the detectives that when he was arrested.

3. [374]

   The cross-examination showed that the accused was asserting that a number of people (including Paula Morrison, Stefanie Langbien, Melissa O’Donoghue, Graeme Hinchcliffe and Steven Bell) were telling lies about him. He agreed that his view of Ms O’Donoghue and Mr Hinchcliffe is that they are “junkies, they are scum”.

4. [375]

   The accused was interrogated carefully as to the telephone records, particularly those showing calls to and from his ‘phone after 11pm on 2 June 2009 and in the early hours of 3 June 2009.

5. [376]

   It was put to the accused that the pattern of the calls established that he was not with Stephanie Langbien at the time (because there were calls to and from her telephone and to a landline in Kelso associated with a house at which she was, or may have been, living at the time). The accused raised a question as to whether Ms Langbien was still at the house in Kelso at that time and may, by then, have moved to her own rental property in Durham Street. The evidence on this issue is not certain.

6. [377]

   It was put that calls to “1800MUMDAD”, a service that allows a person effectively to reverse the call charges, suggested he was not with his mother either.

7. [378]

   The accused agreed that at that time he mostly stayed at Ms Langbien’s home or with his mother. The telephone records suggested that he was at neither of those places.

8. [379]

   The accused agreed that there were no calls to or from Kieran Moore from around 7pm on 2 June 2009 until the following afternoon. It was put that this suggested that he may have been with Kieran Moore. The accused agreed, “maybe”. There was a telephone call at around 1:30am on 2 June 2009 with Kieran Moore. The accused agreed that he used to hang around with Mr Moore at that time and said that he used to buy drugs off him.

9. [380]

   He was taken through calls made to various people who he identified (with one exception) as friends or relatives. He agreed the cell towers associated with those calls showed that he was in Bathurst late on 2 June 2009, that he was “up and about” “somewhere” and was not with the people with whom he had telephone contact.

10. [381]

    There was cross-examination on the statement dated 24 July 2009. He agreed that he described Andrew Russell as a good hearted person but went on to say that he could get a “bit stupid” when he drank. The accused would not agree that he had lied in the statement about his role in the March assault even though he agreed that it “wasn’t the case” that he had only hit Mr Russell once. The accused said he had simply omitted part of the narrative. He believed he was entitled “to be selective in that statement about the truth”. I do not accept this part of the accused’s evidence. I find that the accused deliberately misled the police about what happened during the March assault and allowed Jodi Biles to take the blame for Mr Russell’s injuries.

11. [382]

    The accused agreed that he had a family connection to the Sofala area and that he knew the area quite well. He said he had never been to Hill End but knew that there were mine shafts in that area. He said he had only been to the area on the Red Hill Road twice and declined the Crown’s invitation to add an occasion in June 2009. He agreed that he had gone trail bike riding on the Turon River around Sofala although he disputed parts of the evidence of Luke Salter as to the exact location that they rode together.

12. [383]

    The accused was taken to evidence he had given in chief in relation to the conversation with Stephanie Langbien. As to telling Langbien “that’s a secret you will carry to the grave” the accused said:

13. [384]

    The Crown then played a recording where the accused used the same phrase when speaking with the UCO 10 on 16 January 2013. He said (of himself and his murder of Mr Russell) “that’s what I’ll take to the grave”. The accused attempted to distinguish the conversations by reference to the use of the word “secret” and the fact that the discussion with UCO 10 concerned his own conduct which he distinguished from the implied threat alleged by Ms Langbien. He also said that the expression was one that had been used by UCO 1 in an earlier conversation. This was supported by the evidence to some extent in that there was a recording of UCO 1 saying that he would “take it to my fucking death” when the accused had first confessed on 9 January 2013. However, the accused maintained that he believed UCO 1 had said grave. One way or another, the accused’s explanations for the linguistic coincidence were not convincing.

14. [385]

    The accused was cross-examined about his motive for lying to the undercover officers and his evidence that:

15. [386]

    The accused said that he did not mean that it would be a lie to say that he didn’t do it. I accept that explanation. It was clear when the evidence was given in chief that the accused was concerned not to contradict the account he had provided to UCO 1. In other words, once he had said that he had pushed Mr Russell from the cliff, he was stuck with that version of events.

16. [387]

    The accused asserted that he was not worried about the gang but was “worried about the money”. When it was put that he had been told repeatedly to tell the truth he said “if you go through and listen to all the conversations you can pick a million lies I told them.” He said he was trying to “look good” in front of them and that’s why he told the lies.

17. [388]

    The Crown acknowledged in the course of cross-examination that there were “little embellishments about how it took place”, but put to the accused that he did come across Andrew Russell on the Sydney Road on the evening of 2 June 2009 when he was with Kieran Moore. It was put that “you killed him” and “dumped the body out at Sofala”. The accused denied each of those propositions. The accused agreed that there was a two hour gap in his telephone use and said that there was no reception in Sofala but denied that he had killed Mr Russell and took him to Sofala during that period.

18. [389]

    There was cross-examination about the accused’s evidence that when he took UCO 1 and UCO 4 to Sofala, Wallaby Rock and the location on the Red Hill Road he was making it up as went along. He maintained that this was the case and denied having been at those locations on 2-3 June 2009. He agreed that there was flooding in the area and that there appeared to be water erosion on the steep area on the bank where he showed the UCOs. He agreed that he had told the UCOs “if he was going to wash out, he would have already washed out.”

19. [390]

    The accused was asked about whether he had a motive to harm Andrew Russell because of the existence of apprehended violence proceedings against him and assault charges against Jodi Biles. He denied that he was still angry about the March incident and said the AVO was “nothing”.

20. [391]

    It was put that the accused was lying in his evidence and he denied that proposition. I was not convinced by his volunteered assertion “I am a Christian mate, I’m not going to swear on a Bible and lie.” Nothing in the conduct of Mr Simmons, as evidenced in the covertly recorded conversations, lends support to the proposition that he is guided by the tenets of the Christian faith. The accused agreed that he was prepared, at times, to lie but denied that he was lying in evidence:

21. [392]

    It was put to the accused that he lied in his evidence when he asserted that the UCOs told him “[REDACTED]”. The accused maintained that this had been said. It was put that there is “no record in all of the recordings of that having been said by UCO 1”. The accused replied “he said it”. The particular occasion on which the accused claimed that this was said was when he first met the UCO 9 [REDACTED]. This meeting occurred on 12 December 2012. The recording of that conversation was not played and no transcript was tendered. There was a partial transcript from a conversation on 3 January 2013 tendered in re-examination. In that conversation UCO 1 said of [REDACTED] In the conversation on 16 January 2013 [REDACTED] told the accused “As you know, and UCO 1 would have told you this, that I've done [REDACTED]". In considering the whole of the evidence, and the absence of evidence as to what happened in the first meeting with UCO 9, I am unable to conclude that the accused was lying in relation to this issue. In fact, while the words “[REDACTED]” may or may not have been used, I find that it is likely that something was said that suggested the gang had looked into the accused’s background.

22. [393]

    It was also put that the accused fabricated his motive for telling the police that he was involved in the killing of Mr Russell. It was suggested that his true motive was to enable him to join the gang. The accused maintained that he was motivated by money.

23. [394]

    The accused asserted that he believed that the criminal organisation was non-violent. This assertion echoed the evidence given by Sgt Lukacs. The accused volunteered:

24. [395]

    He was cross-examined on this issue, about whether he was “the type of person to use violence” and about things that he had said to the UCOs that evinced a willingness to use violence. As I said when dealing with Detective Lukacs’ evidence, and for the same reasons, I do not accept that the conduct and conversations of the UCOs suggested the gang would not employ violence when necessary.

25. [396]

    Towards the end of the cross-examination, the Crown cross-examined Mr Simmons on things that Mr Fazio said that Kieran Moore said to police on the day of his arrest (18 January 2013). The cross-examination put to the accused the substance of the facts asserted rather than what was said in the off the record conversation (a matter of which the accused could have no direct knowledge):

26. [397]

    I move now to indicate my findings in relation to the significant areas of factual dispute.

Mr Russell’s movements on 2 June, 2009 and whether he is deceased

1. [398]

   I accept the evidence of Bruce Herbert, Suzanne Wallace, Kelly Burns and Casey Benger as to Mr Russell’s movements on 2 June 2009. I found Jamie Waring to be an unconvincing witness but his evidence on this subject receives support from Ms Burns. I accept that Mr Russell was at their home at Slim Street on two occasions in the course of 2 June 2009. I accept that he went into town with Ms Burns and others and purchased new shoes of the kind and colour depicted in Ex 3. I am unable to accept that any incident in which Mr Russell ran from the accused outside the Coles supermarket (as described by Paula Morrison) occurred on 2 June 2009. For one thing, there is no evidence that the incident occurred on that date. For another, the suggestion that Jamie Waring was present is contrary to the evidence of Waring, Ms Burns, Ms Benger and the accused. Third, Ms Morrison’s evidence as to the location of the incident was inconsistent and her account of the later incident was both internally inconsistent and inconsistent with the interview she made with police. I do not accept Ms Morrison’s evidence.

2. [399]

   I accept that Mr Russell left the Slim Street premises at around 9pm with the stated intention of going to the Dudley Hotel. I accept that he was substantially affected by alcohol when he left.

3. [400]

   I will put to one side the evidence of the possible sightings of Mr Russell by Mr O’Neill late on 2 June 2009 and Ms Coloton on 17 June 2009.

4. [401]

   I accept that nobody noticed that Mr Russell was missing until he failed to attend court on (or shortly before) 20 June 2009 and, based on Detective Smyth’s evidence, I accept that he was reported missing on that date. I accept the evidence of the police officers (Smyth and Fawkner) as to the investigations into Mr Russell’s disappearance that followed. I accept that a Centrelink payment went into his bank account on 16 June 2009 and was not accessed on that date or on any later date. I accept that his normal practice was to withdraw all of the money from the bank account on the day of the Centrelink payment. I accept that subsequent payments accumulated in the account and that the account has not been accessed since 2 June 2009. I accept that Mr Russell was a man who frequently accessed health services and that there is no evidence that he accessed such services after 2 June 2009.

5. [402]

   I am satisfied that Mr Russell did not attempt to return to Queensland to see his mother. There is no evidence that he intended to do so. I am satisfied that his sister (Kiara) made attempts to locate him in places that she knew he frequented.

6. [403]

   On the whole of the evidence I am satisfied beyond reasonable doubt that Mr Russell is deceased.

Motive

1. [404]

   The Crown does not have to prove that the accused had a motive to kill or to harm Mr Russell. However, the prosecution has established that there was animosity between the accused and Mr Russell. This included the fact of the March assault and the fact that the two men stopped living together immediately thereafter. Perhaps more potent is the evidence in the surveillance device material. The accused spoke disparagingly of Mr Russell saying that he was going around town like he was “Mr It” after the March assault. Apart from the accused’s statements, there was no evidence of this. The accused told the undercover officers on more than one occasion that one of the reasons that he was so angry was that Mr Russell spat on his partner during the March assault. The accused made the same allegation in his statement to police in 2009. Once again, apart from the accused saying this, there is no evidence that Mr Russell in fact spat on Jodi Biles.

2. [405]

   The Crown also says that there was a motive in the fact that Mr Simmons faced AVO proceedings and Ms Biles faced an assault charge as a result of the March assault. The accused told the undercover police that these legal troubles went away once Mr Russell disappeared.

3. [406]

   While I am unable to accept that the evidence establishes a motive to commit murder, I do accept that there was animosity between the men and that the accused had a motive to harm Mr Russell. I have taken the evidence of animosity and motive into account in determining whether the case is established beyond reasonable doubt.

Admissions made to people other than the undercover operatives

1. [407]

   I am unable to accept that any of the individual admissions of which a number of “civilian” witnesses gave evidence were in fact made. The quality of the evidence of the witnesses was extremely poor.

2. [408]

   I have no difficulty in rejecting the evidence of Melissa O’Donoghue, Graeme Hinchcliffe, Kypros Kypri, Luke Davis and Steven Bell. In doing so, I have taken into account the warnings that a jury might be given as to their evidence and noted the inconsistencies and quality of their evidence and the motives that some of them had in approaching the police and in giving the evidence

3. [409]

   I have considered carefully the evidence of Ms Langbien and find that it is unsafe to act on it for two main reasons. First, her delay in telling anybody that the accused had admitted murder (“I did it”) is unexplained. Even allowing for the possibility that she did not immediately tell somebody because she wanted the relationship to continue, it is clear that the relationship was over by the end of 2009 and that she believed that the accused and Ms Biles had broken into her home. Ms Langbien’s failure to tell anybody about the admission until September 2011 undermines the credibility of her account to a very substantial degree. Secondly, Ms Langbien’s demeanour betrayed an ongoing (and probably justified) anger and resentment towards the accused arising from his treatment of her during their relationship.

4. [410]

   The evidence of Jodi Biles is more complex. As I have already said, and contrary to the Crown’s submission when objection was taken to defence counsel asking leading questions, I was not of the opinion that Ms Biles was a partisan witness trying to assist the accused. Her demeanour was flat and depressed. She answered most questions “yes” or “no”. Her evidence was largely elicited by reference to prior statements that she had made to investigators. If those prior statements are accepted, the accused made both admissions and denials of involvement in the disappearance of Mr Russell.

5. [411]

   When she raised with the accused Mr Moore’s statements that implicated the two men in the disappearance of Mr Russell, the accused essentially denied involvement and said that Moore was crazy and drunk. Her version of the conversation in the presence of O’Donoghue and Hinchcliffe allowed for the possibility that the conversation was based around a confusion or conflation of rumours and the details of the March assault. She also gave evidence of a conversation in which the accused said that Jamie Waring killed Mr Russell and put him in a wheelie bin at Sofala tip. When (on Australia Day 2013, a week or so after his arrest) the accused allegedly admitted that he punched Mr Russell, hid his body near the Good Guys and then threw him from a cliff (apparently when he was already dead), he immediately thereafter denied involvement. Ms Biles seemed to accept that he may have been repeating the admissions that he had made to the undercover police.

6. [412]

   The admission that she said was made over the telephone when the accused was in gaol for the drug offences was not borne out by the record of that conversation and this places some doubt on the related conversation that took place during a gaol visit at around the same time. I found the accused’s version of this conversation convincing. His version was that Ms Biles was interrogating him as to whether he was involved and he told her, "if you think I did, well you can just fuck off with the rest of them".

7. [413]

   Taken as a whole, I am not satisfied that the accused made any admission or confession to Ms Biles that is sufficiently cogent to act upon. His statements to her (if it is accepted that they were made) were inconsistent. At different times he (i) made admissions that were not consistent with any other version of events but which had features of one or other of those versions (ii) made complete denials of involvement and (iii) alleged that Jamie Waring was responsible.

8. [414]

   Even though I reject the evidence of the admissions given by these witnesses, I find that the accused probably at times said things, or failed to deny things, that led people to believe that he was somehow involved. I base this finding on the whole of the evidence and in particular on the recorded conversations between Ms Biles and Mr Moore at Bloomfield Hospital. In those conversations there was a discussion of the “stories” that both Moore and Simmons had told. Moore seemed to portray it as the pair of them attempting to scare Jakob Peters, convince Jodi Biles of Mr Simmons’ love for her or otherwise “big-noting” themselves. When considering the evidence of the things that Mr Simmons said, I bear in mind the evidence of Luke Salter who described the accused as:

Consciousness of guilt

1. [415]

   The Crown identified six pieces of evidence that it says demonstrates a consciousness of guilt on the part of the accused. It is only if I accept that these things were actually said and if I find that the evidence can only be explained by the fact that the accused knew he was guilty that the evidence can be probative of the accused’s guilt. Like the evidence of admissions, even taken as a whole, it is an unpersuasive body of evidence. It is necessary to provide brief reasons for my guarded approach to each of the six items of evidence:

   1. (1)

      The evidence of Mr Fazio as to what the accused said to Mr Moore at the gaol (“Don’t say a fucking word”) was not supported by Mr Moore and denied by the accused. It was not clearly directed to the disappearance of Mr Russell and, even if that connection is inferred, it did not necessarily betray a consciousness of guilt. I found the accused’s denial of this conversation persuasive. Given the circumstances and his reaction to seeing the accused (“fuck there is Simmons”), it is possible that Mr Fazio misheard or misunderstood what was said.

   2. (2)

      The evidence of Ms Hadley, that the accused asked her to tell Ms O’Donoghue “don’t go” (or, in a different version, “don’t do it”), is capable of other explanations. For one thing, in light of the evidence of the accused’s character and disregard for the law, along with his predicament of being on remand on a charge of murder, it is possible that he may have tried to discourage the witnesses from giving evidence that he believed was untrue or which implicated him in a crime that he did not commit. The accused’s denial of the incident and his evidence that he was happy for the witnesses to come to court because they would be exposed as “junkies” drew some support from the quality of the witnesses.

   3. (3)

      I did not accept Mr Kypri as a witness of truth. His account of the circumstances in which he overheard the conversation (“don’t talk like that because if it comes out I will be doing 20 years gaol”) was inconsistent. His lack of credibility was exposed in cross-examination. It was only during cross-examination that he suggested that there were two separate ‘phone calls, one of which occurred on a telephone in the yard.

   4. (4)

      The telephone call with Ms Biles was not clearly related to the current offence and the offending words (“something may come back to bite you”) were Ms Biles’.

   5. (5)

      The recorded conversation of 6 December 2012 in which the accused spoke of mine shafts in the Sofala area and their usefulness as places to hide a body came in direct response to the comment of the UCO about burying a body under a highway. The comment echoed a comment that the accused allegedly made to Luke Salter many years earlier. That comment was made well before Mr Russell went missing. In those circumstances it is impossible to infer a consciousness of guilt from that statement.

   6. (6)

      I do not accept that the incident described by Paula Morrison, where she was told to “stop asking questions” occurred at all. It is contrary to the version that she originally provided to police. In the course of her evidence she said that it was Jamie [Waring] – not the accused – who made the comment.

2. [416]

   I have considered this evidence, along with the evidence of the admissions, both individually and globally, allowing the individual parts of the evidence to gain strength from the others. I will take it into account in an overall assessment of the Crown case. However, I do so with circumspection because each item of evidence is flawed for the reasons that I have identified.

3. [417]

   The admissions to the undercover police give rise to different considerations. In this instance, there is no doubt that the admissions were made. While some of the conversations are difficult to hear, for the most part what the accused said is clear. The admissions made to the undercover police introduced an entirely new version as to how Mr Russell was killed. While some of the earlier admissions and rumours suggested that the body may have been disposed of at or near Sofala, the accused’s admissions on 9, 15 and 16 January introduced for the first time the suggestion that Mr Russell was pushed from a cliff. The evidence suggests that the first time that the accused asserted that he (and Kieran Moore) pushed Mr Russell off a cliff was on 9 January 2013. He repeated this on 15 and 16 January.

4. [418]

   It is necessary to consider the detail of the admissions he made to police against the objective evidence and the evidence of other witnesses in the case. Do the admissions derive any support from that evidence? Does the other evidence undermine or call into question the efficacy of the admissions? There are matters going both ways.

Date

1. [419]

   The first matter concerns the date. The accused told police that he committed the crime late on the evening of 22 June 2009. The disposal of the body continued into the early hours of the following morning. The Crown case is that Mr Russell was killed late on 2 June 2009. The date is not something that has to be proved beyond reasonable doubt and the indictment provides a spread of dates from 1 June 2009 to 20 June 2009. However the Crown says that the evidence proves that the murder happened on 2 June and relies on a variety of sources and points of reference to this. This includes Mr Herbert’s birthday and the last sightings by Mr Herbert, Ms Wallace, Mr Waring, Ms Burns and Casey Benger. The prosecution also relies on Mr O’Neill’s identification of the missing man as the person he saw at around 10:45pm on 2 June 2009 at Sydney Road, Kelso.

2. [420]

   Both parties seek to place some reliance on the fact that the accused nominated 22 June 2009 as the date that he murdered Mr Russell. The defence says that the date he nominated was wrong while the prosecution says that it is more significant that he got both the month and the year correct. Given the publicity surrounding Mr Russell’s disappearance and the investigation targeting the accused, it is not altogether surprising that the accused was aware of the approximate idea of the date. Having said that I do not accept that the fact that he nominated the wrong date is exculpatory evidence. I think it has more of a capacity to enhance the reliability of the admissions than it does to diminish it.

Location and timing of the abduction of Mr Russell

1. [421]

   The accused told the undercover police that he and Moore picked up Mr Russell on “the white bridge” on the Sydney Road outside Bathurst. The parties agreed that this was a reference to the Evans Bridge (also referred to as the Kelso Bridge). The precise timing is unclear but it was late at night. At one stage he said it was at 11pm and at another he said it was at 1am. Mr O’Neill’s possible sighting of Mr Russell at around 10:50pm on 2 June was at the intersection of Littlebourne Street and the Sydney Road at Kelso. This location is around 1.8 km to the east of the bridge.

2. [422]

   This evidence provides some support for the prosecution case against the accused. It tends to increase the reliability of the admissions because it establishes (if accepted) that Mr Russell was in relatively close proximity to the place where the accused told undercover police that the abduction occurred. While the accused provided a different date (22 June rather than 2 June) he told them that it occurred late at night.

3. [423]

   The cogency of this evidence is enhanced in the light of Detective Fawkner’s unchallenged evidence that there were no media releases concerning the sighting of Mr Russell in Kelso and no suggestion in the media releases that Mr Russell was last seen on the Sydney Road at Kelso. If the evidence of Mr O’Neill’s sighting is accepted, it is a remarkable thing that the accused should nominate that time and place. The Crown says that it is no coincidence.

4. [424]

   In a similar vein, the prosecution relies on John Fazio’s account of what Kieran Moore told police “off the record” after he was arrested on 18 January 2013. According to Mr Fazio, Kieran Moore said “we were driving along Durham Street, pissing down rain about 11, 11:30 at night”. There was some evidence that it rained in Bathurst on 2-3 June 2009 but it was not specific as to time. Durham Street is a continuation of the Sydney Road. The road changes names on the western side of the Evans Bridge, after the road sweeps to the right at the Bathurst Showground. According to the street map that is in evidence, the road is called Kendall Avenue as it passes the showground and then becomes Durham Street. The view of the area showed that the road simply continues and appears to be the same road in spite of the name changes. Mr Fazio also said that Kieran told police that they “pulled over at a bridge, waited for this fellow to approach the car, then Tony Simmons has got out and bashed him”.

5. [425]

   Mr Moore said that he could “possibly” have told the police that he was “walking along the road near the bridge coming into Bathurst”. However, he said that he did tell police that they were driving on Durham Street when they saw Mr Russell and that the accused told him to pull over whereupon there was a confrontation and Mr Russell was rendered unconscious.

6. [426]

   The Crown does not rely on Moore’s out of court, off the record, statement to prove the truth of its contents. It is evidence that must be treated with caution because of its hearsay character (although the Crown says that it is not being used for a hearsay purpose) and because Mr Moore is a witness whose evidence may be unreliable. His statement was made in circumstances where he was charged with murder and where he may have been motivated to shift the blame to the accused. I accept that he was under pressure from Mr Fazio to say something to the police. Further, on this account and on other pieces of evidence (in particular that of Jodi Biles), he is a person who might reasonably be supposed to have been involved in Mr Russell’s disappearance.

7. [427]

   However, the Crown does submit that the fact that Moore nominated Durham Street and (possibly) the Evans or Kelso Bridge as the place where Mr Russell was picked up is significant evidence in the light of the accused’s admissions to undercover police and the fact that he nominated the same approximate location. I accept this submission. I accept that it is a feature of the accused’s admissions which derives some support from other evidence. This coincidence makes it more likely that those admissions are reliable.

8. [428]

   In considering the significance of Kieran Moore’s account I also take into account the things he said to Jodi Biles when she was acting as an agent provocateur when visiting him in Bloomfield Hospital in September 2011. In those conversations, recorded covertly, Moore said that the “story” that they picked Mr Russell up on the “Kelso Bridge in the rain” “[came] from” the fact that they (Biles, Moore and the accused) in fact saw Mr Russell in that location one night when returning from Sydney. This may provide a different, and innocent, explanation for the coincidence between what Moore said on 18 January 2013 and what Simmons said to the undercover police.

The telephone records

1. [429]

   The records of the accused’s telephone provide some support for the prosecution case in that they show that the accused was in Bathurst and active up until late in the evening on 2 June 2009 and into the early hours of the following morning. That provides him with the opportunity to have abducted (or killed) Mr Russell at Kelso at around, or shortly before, midnight. The records also suggest that he was active (using his telephone to “download”) at 2:26am and remained active (using his telephone multiple times) until 4:40am.

2. [430]

   On the other hand, those records have a capacity to undermine two significant aspects of the version of the events that the accused provided.

3. [431]

   First, his account of going to Sydney (Campbelltown) to purchase drugs on 2 June 2009 receives no support in the telephone records. In fact the records contradict his account. His ‘phone was active during the day and connected through cell towers in or around Bathurst. Unless somebody else was using his telephone (a possibility that destroys any use that can be made of the records), the telephone records establish that he did not go to Campbelltown that day. This is of some significance because he told the UCO that he and Kieran Moore came upon Mr Russell on their return from Sydney. That part of the story was not true.

4. [432]

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

5. [433]

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

6. [434]

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

Shoes, clothing and wallet

1. [435]

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

2. [436]

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

3. [437]

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

4. [438]

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

Cars

1. [439]

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

2. [440]

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

Where the accused had been earlier in the day

1. [441]

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

2. [442]

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

The March assault

1. [443]

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

2. [444]

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

3. [445]

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

4. [446]

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

The location of the disposal of the body

1. [447]

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

2. [448]

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

3. [449]

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

4. [450]

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

5. [451]

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

6. [452]

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

The topography of and accessibility to Wallaby Rock

1. [453]

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

2. [454]

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

3. [455]

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

4. [456]

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

5. [457]

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

6. [458]

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

The visit to Mrs Moore’s mother’s house

1. [459]

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

2. [460]

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

Burning the clothes and night vision

1. [461]

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

2. [462]

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

Conclusion as to accused’s confessions to the undercover police

1. [463]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

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

   6. (6)

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

   7. (7)

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

   8. (8)

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

   9. (9)

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

   10. (10)

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

2. [464]

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

3. [465]

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

4. [466]

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

5. [467]

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

   1. (1)

      Mr Russell is dead.

   2. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

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

   6. (6)

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

   7. (7)

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

   8. (8)

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

   9. (9)

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

6. [468]

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

7. [469]

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

8. [470]

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

9. [471]

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

The accused’s response to the circumstantial case

1. [472]

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

2. [473]

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

3. [474]

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

4. [475]

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

5. [476]

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

6. [477]

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

7. [478]

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

8. [479]

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

9. [480]

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

10. [481]

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

11. [482]

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

12. [483]

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

13. [484]

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

14. [485]

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

15. [486]

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