Citation: R v Coss (No 10 – Verdict) [2023] NSWSC 447
Court: Supreme Court of New South Wales
Date: 28 April 2023
Judge: Dhanji J
Background
The accused, a resident of Bingara in north-west New South Wales, stood trial charged with murdering his neighbour, Darren Willis, between 10 and 19 December 2010. The deceased was last reliably placed alive on 13 December 2010. He was reported missing in January 2011, and a coronial inquest in 2014 found on the balance of probabilities that he had died, though no cause or manner of death could be determined. No body was ever found, though skull fragments emerged during the trial proceedings.
The Crown case was reinvigorated in January 2018 when a close friend of the accused, Robert Stonestreet, fell out with him following a violent altercation and subsequently disclosed to a mutual acquaintance, Keith King, that he had witnessed the accused kill the deceased with a wooden instrument fitted with a screw. Mr King reported this to police the following day. Police obtained telephone intercept and surveillance device warrants, capturing recordings of the accused discussing the investigation and the deceased, though no direct admissions were made.
The accused elected to be tried by judge alone under s 132 of the Criminal Procedure Act 1986 (NSW), with the Crown's agreement. The trial sat in Moree and then across two further sittings in Sydney, an unusual course addressed in the judgment.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that the accused murdered Darren Willis, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW)
- The reliability and credibility of the key Crown witnesses, including Stonestreet and Marle, who gave inconsistent versions and were affected by drugs and alcohol on the relevant night
- The weight to be given to surveillance and listening device recordings that contained no direct admissions
- Whether the Crown had established that the accused acted alone in causing the death, given the involvement of witnesses who may themselves have had a role in relevant events
- The significance of the absence of the body and the partial remains discovered during the trial
Decision
Dhanji J returned a verdict of not guilty. The judgment identifies significant problems with the Crown case, the most fundamental of which concerned the reliability of its two key witnesses, Stonestreet and Marle. Both had given inconsistent versions of events, and both had been affected by drugs and alcohol on the night in question. Each had received benefits for cooperation with police, a factor bearing on their credibility.
The recordings obtained under the surveillance and telephone intercept warrants did not contain direct admissions by the accused. While the Crown submitted that various statements made in those recordings were capable of sustaining an inference that something had occurred between the accused and the deceased on a particular night, the court's assessment of what could actually be established from those recordings, taken with the other evidence, was plainly insufficient to found a guilty verdict.
The Crown accepted during proceedings that, because it relied on Stonestreet and Marle as witnesses, it was required to prove that the accused acted alone in causing the death. This concession, noted by Dhanji J as properly made, effectively foreclosed any inference that either of those witnesses had assisted with disposing of the body and then lied about it. That constraint further complicated the Crown's task of establishing guilt beyond reasonable doubt.
The unusual course of the trial, including the discovery of skull fragments during proceedings and earlier attention to a bone found locally that was ultimately identified as a kangaroo tailbone or human backbone, was addressed in the judgment. The trial attracted publicity given the small community setting. Ultimately, the accumulation of evidentiary problems, including witness unreliability, the absence of direct admissions, and the constraints the Crown placed on its own case, led to an acquittal.
Orders Made
No orders were made in this decision.
Key Takeaways
- In a judge-alone murder trial, the Supreme Court found that deeply inconsistent evidence from key Crown witnesses who had received benefits for cooperation, and who were affected by drugs and alcohol on the night in question, was insufficient to establish guilt beyond reasonable doubt.
- A no-body murder prosecution is not automatically precluded from proceeding, but the absence of remains compounds the evidentiary burden where other Crown evidence is itself unreliable.
- Surveillance and listening device recordings that contain no direct admissions may still be relied on by the Crown as circumstantial evidence, but their probative weight will be assessed carefully alongside the whole of the evidence.
- Where the Crown's own witness selection requires it to prove the accused acted entirely alone, that concession can narrow the available circumstantial inferences and constrain the overall case theory.
- Dhanji J confirmed that a trial by judge alone under ss 132 and 133 of the Criminal Procedure Act 1986 (NSW) requires the court to be satisfied that the accused received appropriate legal advice before making the election.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a) (definition of murder)
- Criminal Procedure Act 1986 (NSW), ss 132, 133(2), 133(3) (election for trial by judge alone)
Cases:
- R v Coss (No 2) [2022] NSWSC 792 (order for trial by judge alone)