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Supreme Court 18 July 2022

R v Coss (No 8)

[2022] NSWSC 975

Homicide
CRIMINAL PROCEDURE TRIAL JUDGE ALONE MURDER NEW EVIDENCE BONE FRAGMENTS FOUND

Citation: R v Coss (No 8) [2022] NSWSC 975
Court: Supreme Court of New South Wales
Date: 18 July 2022
Judge: Dhanji J

Background

The accused faced trial for murder before Dhanji J, sitting as judge alone, in Moree. The alleged victim was a man referred to in the proceedings as Darren Willis. The trial commenced on 30 May 2022 but was interrupted unexpectedly on 9 June 2022, through no fault of any party, requiring a short adjournment.

During that adjournment, media coverage of the trial prompted an elderly property owner to come forward with new information. He told police he had found what he believed was part of a human backbone on his property approximately five years earlier. On revisiting the site, he could not locate that original bone but found further bone fragments, which he handed to police.

Forensic examination identified the fragments as part of a human skull and jawbone. DNA testing returned a result described as making it very highly probable that the fragments belonged to Darren Willis, the alleged victim.

  • Whether the trial should be adjourned to allow for further investigation of newly discovered bone fragments potentially belonging to the alleged victim
  • How to balance the accused's interest in the speedy resolution of proceedings against the potential significance of the new evidence to the trial

Decision

The Crown applied for an adjournment, and the defence did not oppose it. Dhanji J accepted that the new evidence was clearly highly relevant to the proceedings for two distinct reasons.

First, the DNA results would establish to near-certainty that Darren Willis is deceased. His Honour noted that, while the defence had not conceded the alleged victim's death, this had not appeared to be a central plank of the defence case.

Second, the bone fragments carried the potential to shed light on the manner of Willis's death. That evidence could either corroborate or undermine the testimony of two Crown witnesses, Mr Stonestreet and Mr Marle, who had given evidence about the events surrounding the alleged murder.

His Honour acknowledged the significant burden the adjournment imposed on the accused, who had been connected to the investigation since 2011 and arrested in October 2019. However, weighing the competing factors, Dhanji J concluded that the potential significance of the new evidence meant the balance fell squarely in favour of granting the adjournment.

Orders Made

  • The hearing was adjourned, with the trial to recommence on 28 November 2022 with an estimate of one week.
  • The matter was listed for mention on 11 October 2022 at 9:30am.
  • The accused was excused from attending the mention.
  • Leave was granted to the parties to appear by audio-visual link at the mention if required.
  • Leave was granted to the parties to approach the judge's associate if further matters arose requiring the court's attention before the next listing.

Key Takeaways

  • The Supreme Court granted a mid-trial adjournment in a murder proceeding where newly discovered physical evidence, identified through DNA testing, had the potential to bear directly on both the fact and manner of the alleged victim's death.
  • Where new evidence carries the capacity to either corroborate or undermine existing witness testimony, that dual significance weighs heavily in favour of allowing time for further investigation.
  • A court conducting this balancing exercise must weigh the public interest in the speedy resolution of proceedings and the personal burden on the accused against the potential significance of the new material to the fairness and completeness of the trial.
  • Publicity surrounding an ongoing trial can, in some circumstances, prompt the emergence of previously unknown evidence, as occurred here when media coverage led a member of the public to contact police.
  • No error or fault on the part of any party was required for the adjournment to be warranted; the unexpected emergence of potentially decisive new evidence was sufficient to justify the delay.

Legislation and Cases Referenced

Legislation: None cited in the judgment.

Cases: None cited in the judgment.