R v Camelo-Gomez

Supreme Court of NSW|2022-02-16|Before: Wilson J

Judgment

HER HONOUR: The Crown has presented an indictment against the accused, Isabela Camelo-Gomez, born Megan Jones, charging her with the murder of Irene Jones, an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), that occurred on 2 November 2001, at Lansvale. The accused has entered a plea of not guilty to the charge. Before her trial - which is listed to proceed this month - commences she has by Notice of Motion filed on 20 December 2021 sought an order permanently staying her trial.
The Crown opposes the application.
The accused relies upon the delay in bringing the charge against her, the unreasonableness of that delay, and the unfairly burdensome and vexatious nature of the criminal proceedings, to argue that to allow the trial against her to proceed would be to permit an abuse of the processes of this Court.

Background

On 2 November 2001 Irene Jones was murdered at her home in Lansvale. The accused, Mrs Jones' daughter and only child, was interviewed at about the time of the fatal incident and suspected by police of being responsible for it, but she was not charged with any offence.
A coronial inquest was held into Mrs Jones' death in 2007. At the conclusion of the proceedings, the coroner did not determine that a known person caused the death, and instead referred the matter for further investigation by the Unsolved Homicide Team of the New South Wales Police Force.
On 24 September 2019, the accused was charged with her mother's 2001 murder. The matter is listed for trial before this Court at the completion of the hearing of pre-trial applications, of which this application is the first. A jury panel has been held in abeyance pending determination of the pre-trial matters.

The Accused's Case

The accused read two affidavits from her solicitor, Diane Elston, affirmed on 19 January 2022 and 11 February 2022 respectively. Documents referred to by Ms Elston in her affidavits were Exs. DE-1 and DE-2 (both in amended form, there having been significant alterations to the case presented during the hearing of the application). Further material tendered in support of the application became Ex. 1 to Ex. 5 inclusive.
In her first affidavit Ms Elson stated that her employer, the Legal Aid Commission, has acted for the accused since September 2019, whilst Ms Elston has been personally involved since October of that year.
Ms Elston noted that, following the murder of Mrs Jones in 2001, Detective Senior Constable ("DSC") Andrew Walton attended the crime scene at an address in Huntingdale Avenue Lansvale, and oversaw the investigation into Mrs Jones' death from that time until 2007. The investigation was nominated Strike Force Trancas. DSC Walton prepared a statement for the coronial proceedings into Mrs Jones' death that was held in 2007, and a second statement later in time. He is no longer a serving police officer.
As part of the investigation, telephone services used by the accused and Carlos Camelo were intercepted between 9 November 2001 and 2 February 2002, and from 5 February 2002 to 25 February 2002, a listening device was active in the accused's home. There was further interception of the accused's telephone together with that of Carlos Camelo from October 2007 to April 2008; and of the accused's telephone from September 2018 to June 2019.
Carlos Camelo is not available to give evidence at the forthcoming trial because of a catastrophic motor vehicle crash in 2013 that left him with a traumatic brain injury and "deep retrograde amnesia" for events preceding the crash. Mr Camelo was interviewed by police prior to the crash. His brother, Cesar Camelo, is similarly unavailable, although it is understood that is because he is a resident of another country. He was never interviewed by police, although he has been in Australia from time to time over the years.
In her second affidavit Ms Elston noted that she has served the Crown formal notice of her client's intention to adduce hearsay evidence of previous representations made by Carlos Camelo. She referred to evidence contained within the brief served by the prosecution that establishes or suggests that Camelo was in the area of the deceased's home at about the time she was murdered. His whereabouts at the time are not otherwise accounted for.

Differing Accounts of the Factual Allegations Against the Accused

Amongst the documentary material referred to by Ms Elson is the Police Statement of Facts prepared when the accused was charged in 2019, together with two versions of the Crown Case Statement ("CCS"), those of 10 December 2020 and 3 December 2021.
In brief, the Crown case against the accused is that, at some stage between about 8pm and 9.45pm on Friday 2 November 2001, the accused murdered her mother by strangling her with a ligature and stabbing her to the neck with a sharp implement. Afterwards, she went to a neighbour's home claiming that a man was in her house and asserting that she had fled after having been assaulted by the unknown assailant. She told her neighbour that she could not find her mother. A call was placed to the Emergency Operator and police arrived soon after.
On searching the home that the accused shared with her mother a police officer found Mrs Jones lying face down on the kitchen floor, with a quantity of blood pooled beneath her. Items were found strewn about the home as if an intruder had ransacked the premises, although items of value were observed in the home in plain sight. There was no evidence that anything had been stolen. The ligature and knife or other implement used in the assault upon Mrs Jones were never found.
The accused gave police an account of an assault upon her carried out by a white male with blonde hair whose appearance was disguised by a stocking placed over his head. The male was wearing white fabric gloves on his hands that were stained with red marks. The accused said that the male attacked her when she returned to her bedroom after a shower and tried to strangle her with a cord around her throat. She managed to escape and fled. She was later examined by a doctor. She had relatively minor injuries that the Crown alleges are inconsistent with the severity of the assault she says she was subjected to.
At Mrs Jones' funeral on 9 November 2001 witnesses described the accused crying over the coffin, saying something like "I'm sorry Mum, I didn't mean it to go this far".
The police investigation quickly focused on the accused and, to a lesser extent, the man with whom she was believed to be in an intimate relationship, Carlos Camelo, a Columbian national. Camelo is the brother of Cesar Camelo, a man whom the accused married in Columbia in March 2001, a marriage the Crown alleges was a charade, intended to facilitate Cesar's migration to Australia, and which the accused entered at Carlos Camelo's request and because of her infatuation with Carlos.
Several witnesses gave statements to police in which the accused was described as aggressive and domineering towards her mother in the months prior to the murder, demanding money from Mrs Jones and subjecting her to instances of physical violence, causing injury. The deceased expressed to others her fear of her daughter, who was said to be pressuring Mrs Jones to either mortgage her home to provide the accused and Camelo with money to start a business, or to convey the house into the accused's outright ownership. Mrs Jones told at least one witness that, if the accused continued in a relationship with Camelo, she intended to change her will and leave her house to a charity.
The accused was in parlous financial circumstances at the time of her mother's death, with unpaid bills. She was also providing financial support to Camelo.
Mrs Jones left a will, executed on 17 March 1999, in which she bequeathed her property to the accused.
One of the more significant differences in the documents that were produced by the prosecution between September 2019 and December 2021, outlining the facts alleged, reflects changes to the allegation as to the accused's movements in the period immediately prior to the attack upon Mrs Jones.
On the evening of 2 November 2001, the accused and Mrs Jones went to a restaurant in Wentworthville to celebrate the latter's 56th birthday. The bill was paid at 7:18pm, and the accused and her mother went home, arriving at around 8pm. Four minutes later, a 27 second telephone call was placed from the accused's mobile telephone service to that of Carlos Camelo.
The accused then drove to the AM Petroleum service station at Lansvale and purchased petrol, paying for it at 8:16pm, that time being corrected in the CCS of 3 December 2021 to take account of an error on the time stamping of the cash register receipt, not previously noted. Surveillance footage ("CCTV") from security cameras in operation at the service station showed a male paying for petrol at about 7:50pm who resembled Camelo, although the image was blurred and indistinct. The time stamp on the footage, like the cash register data, was incorrect, and the December 2021 CCS corrected it. The correction removed the basis of an earlier allegation made by police and the Crown that the male depicted on the CCTV from AM Petroleum was likely to be Camelo, in the area and with the accused at the service station at about 8:15pm on the evening immediately prior to the attack upon Mrs Jones.
The CCTV is relied upon by the accused to support her contention that it is reasonably possible Camelo was in the area - although not in the accused's company - because of his involvement in Mrs Jones' murder. The accused disputes evidence that suggests she was involved in any relationship with Camelo other than as a friend and brother-in-law; that she had been extracting money from her mother or attempting to do so; that she was violent towards her mother; or in any way involved with her death. She raises the possibility that Camelo murdered her mother, or that the murder was committed by another individual who had targeted the accused on 31 October 2001 in a road rage incident.
Another variation in the statements of facts alleged from time to time reflects recently obtained blood spatter or blood deposition evidence from an expert in blood pattern analysis. A single area of staining on a yellow t-shirt that the accused had been wearing at the time of the assault she alleges was committed upon her by the unknown blonde male in her bedroom was analysed by Detective Sergeant ("DS") Sarah Southall. DS Southall is of the opinion that the stain is consistent with spatter stains rather than transfer stains, as may have occurred if the shirt had been touched by an individual wearing bloodied gloves as the accused asserts. The officer would also expect there to have been a greater quantity of transfer stains if the accused had been grabbed and assaulted in the way she described.
The accused disputes this opinion, pointing out that the opinion fails to consider the lesser likelihood of transfer from a substance such as cotton, or the fact that the accused's long wet hair was hanging down her back on top of the t-shirt when she was grabbed from behind by the intruder.
The differences in the facts alleged against the accused over time are pointed to by the accused to show both that the change in the strength of the case against the accused as it was at a time soon after the offence, and the time of charge is negligible; and that errors during the investigation have had an impact upon the accused's capacity to defend herself.

Lost Evidence

In her second affidavit Ms Elston refers to evidence that may have been of assistance to the accused which has been lost with the passage of time.
Maureen Young worked with the accused in 2001 and for three years before that. A letter from Ms Young dated 6 August 2001 was found in the boot of the accused's car on 3 November 2001, but no witness statement was ever taken from her, as she was reluctant to speak to the police. The 6 August 2001 letter refers to attempts by Paolo Camelo, the wife of Carlos, to discredit the accused. Ms Young died in 2016.
No police statement was obtained from Cesar Camelo during the police investigation as to the nature and legitimacy of his relationship with the accused leading up to and following their marriage in March 2001, and particularly, from 2003 when he arrived in Australia. He is not a Crown witness at the forthcoming trial.
On 19 March 2003 a police computer record, or COPS event, recorded a complaint from the accused about an attempt by three males to steal her car. The narrative records that the accused was woken from sleep due to noises and, on looking out her window, she saw three men pushing her car along the road. She yelled at them "and then woke her husband" (Ex. DE-2, 271). The husband referred to was Cesar Camelo. It is possible that this narrative could provide some support for the accused's claim to have had a normal marital relationship with Cesar, but it is said that the opportunity to fully explore that is lost.
A friend of the accused at the time of her mother's murder, Bora Lim, made a statement on 21 November 2001, and a further statement on 13 November 2018. By the time of her second statement Ms Lim's recollection of the circumstances in which she prepared a statutory declaration on 9 September 2003 was vague. The declaration concerned the relationship between the accused and Cesar Camelo and was made in support of an application by Cesar for permanent residency in Australia on "spouse grounds". By 2018, Ms Lim was not able to say whether all the information in the declaration was correct.
Records relating to money transfers through Western Union are retained for five years, and any records for the period 2000 - 2001 no longer exist. Such records may have been relevant to the nature of the accused's relationship with Cesar.

Accounts of the Movements of Carlos Camelo

Exhibit 1 in the accused's case contains the transcripts of interviews with Carlos Camelo and his two friends, Sean Hardy and Nicholas Soucoff. This material is relevant to establishing the movements of Carlos Camelo, whom the accused suggests may be responsible for the murder of her mother.
Sean Hardy was interviewed as a witness on 3 November 2001. At that time Mr Hardy was living at an address in Cecil Hills that he could not recall, with two other men whom he nominated as Marcos "Sogonov or something" and Andres. The former appears to be Nicholas Soucoff, whilst the latter appears to be Carlos Camelo.
Hardy said that he had worked on 2 November 2001, arriving home close to 5pm. He thought Andres was not at home at that time. Hardy fell asleep and woke at about 8.30pm when his mate Nicholas and Andres came into the residence. Andres went to have a shower. Hardy fell asleep again and woke at about 1am on 3 November 2001 to see both Nicholas and Andres sitting on the couch. He went upstairs to bed and was awoken sometime after 3am on 3 November 2001 to detectives knocking on the door. Andres was not at home at the time. Later that day when Andres had returned home Hardy told him that the police were looking for him.
Mr Hardy said he knew nothing about Andres having friends in Lansvale, and he did not know Irene Jones or Megan Jones.
Mr Hardy made a statement to police on 10 April 2019. Apart from a minor matter concerning unlicensed driving, he said that he had told police the truth in his 2001 interview. He described seeing a girl in Andres' company a few days after he was interviewed, who had said she was the daughter of the lady who died at Lansvale. He thought he may have seen the girl with Andres once before the police interview, and afterwards. Andres told Mr Hardy that he was in a relationship with the girl and had been living at her place prior to Cecil Hills. Mr Hardy went on to say that Andres had not really been living at Cecil Hills; he spent a few nights on the couch there.
Mr Hardy referred to a conversation with Andres about 10 days after the interview he had with police in November 2001 in which Andres made a comment about how the lady's throat was cut. He also promised to give Nicholas $10,000.
Nicholas Soucoff was also interviewed by police on 3 November 2001. He named his flatmates at an address in Cecil Hills as Sean Hardy and Carlos Camelo. He said he did not know the deceased or Megan Jones and did not know if Megan Jones was seeing Carlos Camelo. Mr Soucoff said that, after work on 2 November 2001, Camelo had gone to Parramatta and been away for an hour or perhaps two. He was not able to say whether Camelo had been wearing the same clothes on returning from Parramatta as when he left home to go there.
About two hours after Camelo returned from Parramatta, Mr Soucoff and he went together to the Marconi Club, leaving home at midnight.
Mr Soucoff said that he found out about the murder at Lansvale when he came home from work on 3 November 2001, when Camelo told him.
In a statement of 16 November 2001 Mr Soucoff retracted much of what he said in the interview, noting he had not told the truth about some things. He said that Carlos had left the Cecil Hills residence at about 8pm on 2 November 2001, driving a white Toyota Hilux utility. Carlos had said he was going to Parramatta to drop the ute off at his boss' place. Carlos returned home between 11pm and 11.30pm and, after changing his clothes, accompanied Soucoff to the Marconi Club. Soucoff said he did not give a truthful account in his interview because Carlos did not have a driver's license and he had asked Soucoff not to tell the police he had driven a car.
On 16 July 2019 Soucoff was again interviewed. He referred to an occasion that was probably after Mrs Jones was murdered when Camelo had brought a crying girl to their home and asked if she could stay. He thought the girl had married or was going to marry Camelo's brother but noted that his memory was poor. He could not remember being asked to lie for Camelo in his 3 November 2001 interview, and he could not remember correcting his interview in a statement later in November 2001. Mr Soucoff did not really remember his or Carlos Camelo's movements on 2 November 2001, although he did remember driving a white Toyota Hilux utility because Carlos was not a good driver. He thought he remembered going to the Marconi Club, and he thought he remembered Carlos going somewhere before that and then coming home. He said he knew nothing about the murder and, although maybe Carlos or someone else had told him something about it, he could not remember.
Carlos Camelo was interviewed as a witness on 3 November 2001. He said he lived with his friends Nicholas and Sean. He acknowledged knowing both the deceased and Megan Jones, having met the latter through his wife at the Mormon Church. He said Megan Jones became his sister-in-law when she married his brother in South America in February or March 2001. He denied having a sexual relationship with her.
Camelo said that Megan Jones was his friend and she and her mother helped him when he separated from his wife, allowing him to live in their home. The accused and her mother had a good relationship. He said he had last been at the Jones home "a couple of weeks ago" (Ex. 1, 127). He had a key to the house when he lived there but had lost it.
On 2 November 2001 he said he met the accused at Carlingford Court to see her new workplace. Afterwards he had gone to Parramatta to use an internet café. He spent the afternoon at Parramatta and then met his friend Nicholas there at about 7.30pm, after which the two men caught a train and taxi home to Cecil Hills. He said they arrived home at 9pm. Later, he and Nicholas went to the Marconi Club.
Camelo was interviewed for a second time on 29 November 2001, under caution. On this occasion, Camelo said that he and Nicholas arrived home at Cecil Hills at about 8 - 8.30pm on 2 November 2001, after which he went back to Parramatta, and then returned to Cecil Hills. He then went with Nicholas to the Marconi Club.
When questioned about that account, Camelo added that he had gone to Cabramatta in the morning to pick up a Toyota Hilux ute from Huntingdale Crescent (Lansvale) and had then driven the ute to Parramatta. He already had the key for the ute, having previously gotten it from his friend Megan. He said he drove the ute to Carlingford to visit the accused and they had lunch. After lunch, he returned to the ute and drove back to Parramatta, where he remained until 7.30pm.
Camelo said that he picked up Nicholas, who was at a restaurant in Parramatta, at 7pm or 7.15pm, and they returned to Cecil Hills, arriving 45 minutes or one hour later. He said he showered, ate something, watched a movie, and then went back to Parramatta at about 9pm or 9.30pm. He remained there for two or three hours before returning to Cecil Hills. Leaving the ute parked in the street, Camelo said that he and Nicholas then went to the Marconi Club. He did not think he took the ute back to Lansvale that day, dropping the car back on Saturday or Sunday [3 or 4 November 2001] and parking it around the corner from the Jones home.
Camelo denied being in the Lansvale area on the evening of 2 November 2001. He denied asking Mrs Jones for money or having any disputes with her.

Coronial Proceedings

An inquest into the death of Mrs Jones was held on 5 and 6 November 2007, six years after her murder. The evidence does not account for the length of time between the attack upon Mrs Jones and the conduct of the coronial inquiry. The transcript of the hearing at the Westmead Coroner's Court forms part of the accused's case, principally to highlight the possibility or likelihood of the contamination of the evidence of witnesses, some of whom are now dead, and whose evidence the Crown will seek to adduce at trial pursuant to s 65 of the Evidence Act 1995 (NSW).
Witness statements and other documentary evidence were tendered to the Deputy State Coroner through the police officer who then had the role of officer in charge of the investigation, DSC Christine Meszaros. Few of those documents are in evidence in these proceedings and to that extent, the transcript which is before the Court is an incomplete record of the inquest, and an incomplete account of the evidence of most of those witnesses called.
The accused attended the inquest and, as a person of interest in the proceedings, was granted leave to be legally represented throughout. Her counsel was able to cross-examine each of the witnesses who were called at the inquest.
One of the statements tendered to the coroner that is in evidence in these proceedings is that of DSC Walton. It consists of 204 pages and was made progressively from the commencement of the officer's involvement in the matter on 2 November 2001, to 15 June 2005.
As was usual for a coronial statement made by the police officer in charge of the investigation of a reportable death under the Coroners Act 1980 (NSW) ("the 1980 Act", now repealed), all information, rumour, opinions, and summaries thereof were included in the statement. It is not intended here to address all that material.
Amongst the information summarised by DSC Walton was the statement obtained from Dianne McLeod on 5 November 2001. In the statement Mrs McLeod, a friend and neighbour of the deceased, stated that Mrs Jones had been concerned about the accused, whom she said had met Camelo through his wife Paula [Paolo Camelo]. Mrs Jones told Mrs McLeod that Paula had threatened to burn the deceased's house down.
On the day of the deceased's death police had contacted Mrs McLeod and told her what had happened, asking her to accompany the accused in an ambulance to hospital. During the trip the accused told Mrs McLeod that a blonde fellow had attacked and strangled her, but she had fought him off. She said she saw her mother in the house. That she saw her mother before running from the house is inconsistent with the accounts given by the accused to police and others.
DSC Walton also referred to and summarised the evidence of observations of injuries to the accused, and the removal for forensic examination of the clothing she had been wearing, including a yellow t-shirt. Photographs were taken of the injuries, and of the clothing. He described the attempts made to locate Carlos Camelo in relation to the murder, and accounts of his movements obtained from him and two friends of his, Nicholas Soucoff and Sean Hardy.
Summaries of all the statements of witnesses who later attended the inquest and others were included by DSC Walton in his coronial statement.
Judith Bowerman was a neighbour of the accused and Mrs Jones. In her police statement dated 5 November 2001, she said that the deceased told her that Camelo was "nothing but a problem" and was using the accused for money. In the weeks before she died the deceased had believed that Camelo was returning to Colombia, departing on 15 October 2001, and she reported that the accused and Camelo had taken Camelo's dog to the airport for the trip to Colombia. Mrs Bowerman had been surprised to see Camelo soon after Mrs Jones died.
In her evidence to the coroner Mrs Bowerman said she heard the accused and deceased arguing from time to time and knew from speaking regularly with Mrs Jones that the deceased did not want Camelo living in her house, as he was in the months before Mrs Jones died. By mid-October 2001 Mrs Jones reported to Ms Bowerman that Camelo had "gone", having left the country.
Joyce Sheldrick was a cousin of the deceased. She made a statement on 3 November 2001. She said that late in 2000 the deceased had begun to talk about "Carlos", a Colombian national who was married to Paula and knew the accused through Paula and her church. The deceased told Mrs Sheldrick that she thought Paula was jealous of the accused because she thought she was involved in a relationship with Camelo. The deceased was not happy when Camelo moved into her house a few months prior to the murder. She said that Paula had caused trouble for the accused and Carlos. When Mrs Sheldrick spoke to the deceased on 31 October 2001 Mrs Jones said that Carlos had returned to Colombia.
Joyce Sheldrick told the inquest that she believed Mrs Jones and the accused to have an ordinary mother-daughter relationship, although she understood from Mrs Jones that she did not like Camelo. Mrs Sheldrick found out from Mrs Jones that the accused had gone to Columbia and married Camelo's brother, this being something Mrs Jones found out after it had taken place. Mrs Sheldrick found out other things from other people after Mrs Jones had died.
Keith Sheldrick, Joyce's husband and relative of Mrs Jones, made a statement on 3 November 2001. He stated that the deceased had not approved of the relationship between the accused and Camelo and he was aware of heated arguments between the deceased, the accused, and Camelo.
Keith Sheldrick told the court that he had a discussion with Mrs Jones on the telephone one day and she told him that the accused had fallen behind on car repayments for a new car she had bought. Mrs Jones asked if Mr Sheldrick could loan the accused some money. He received other information about events connected with the accused, her mother, and Camelo from his wife, whom he understood had received it from Mrs Jones. Mrs Jones spoke to him about the accused lying to her about travelling to Colombia and marrying Camelo's brother; he knew her to be upset about the lies. He was aware that Mrs Jones had installed security lights at her home, but he did not manage the installation for her.
After the death of Mrs Jones, the accused stayed with he and his wife for some time. When staying with the Sheldricks the accused took an overdose of pills and was taken to hospital by ambulance. At some point Mr Sheldrick asked the accused if she had murdered her mother and she broke down and cried.
Edna Edwards knew the deceased for much of Mrs Jones' life and spoke to her frequently by telephone. Her police statement was made on 4 November 2001. She said that six or seven months prior to the murder the deceased had told Mrs Edwards that Carlos had asked her to mortgage her house and give him the money to start a business. She also reported an incident described to her by the deceased when the accused had held the deceased down on a bed and tried to choke her. The deceased said that the accused wanted her house, but the deceased had told the accused no, and that the accused would get it when she was dead. Mrs Jones had been very happy when she thought Camelo had left for Colombia.
Edna Edwards deposed that Mrs Jones said that she did not like Camelo and was frightened of him. He had asked Mrs Jones to mortgage her house and give him money to start a new business. That conversation with Camelo left Mrs Jones "petrified" of him, and also angry or "livid". Mrs Jones also told Mrs Edwards that "Megan wanted the house off her, wanted her to sign the house over to her" (Ex. DE-1, 219).
Mrs Edwards described an incident reported to her by Mrs Jones in which Mrs Jones said that the accused tried to "choke her to death" during an argument and she had believed that she was "a goner" (Ex. DE-1, 221). Mrs Jones had been extremely upset by the incident. Although it was not recorded in her statement to police made on 4 November 2001, Mrs Edwards deposed that the argument in which the accused tried to choke her mother had been about the house, with the accused wanting her mother to sign the house over to her.
Mrs Edwards told the court about the deceased telling her that she had found photographs of the accused's wedding in Colombia, a wedding that the accused had told her mother when challenged was a "mock wedding".
Mrs Jones had been delighted when she believed Camelo was leaving Australia for Colombia, but she later expressed her fears to Mrs Edwards that he had not in fact departed. She told Mrs Edwards then that she was frightened that she was going to be murdered, or "bumped off". The conversation in which Mrs Jones reported her fear of being murdered was not included in Mrs Edwards' statement to police, as she forgot about it, saying only that Mrs Jones had been worried by the possibility that Camelo was still in the country.
Margaret Bunter was a friend of Mrs Jones who spoke to or saw her at least weekly. Ms Bunter made a statement on 7 November 2001. She stated that she had been told by the deceased that the accused was very violent towards her and on one occasion broke her spectacles. The deceased told Ms Bunter that she hated Carlos, whom she regarded as a conman, and said his wife Paula was causing trouble. On 2 November 2001 the deceased spoke with Ms Bunter. She was upset because she had discovered that the accused had not paid the bills Mrs Jones had given her money to pay. She said the accused owed her money, and reported a problem with her mail, which had not been delivered in two months (there being some other evidence of a mail redirection put in place by the accused).
She believed that the relationship between the accused and the deceased deteriorated after Camelo "was on the scene" (Ex. DE-1, 241), and Mrs Jones told Ms Bunter that she hated Camelo. She also showed Ms Bunter a bruise on her arm and her broken spectacles, although she did not say what had happened beyond stating that the accused broke her spectacles. Mrs Jones told Ms Bunter that the accused wanted $20,000 from her to start a business, although Ms Bunter said in cross-examination by counsel for the accused that she should have said that both the accused and Camelo wanted Mrs Jones to sell the house. The accused and Camelo wanted Mrs Jones to sell her house for the money. The accused had been "pestering" the deceased to sell the house, and Ms Bunter believed that the deceased had been giving the accused money, since she seemed to be short of money for herself. Mrs Jones also reported that she had given the accused money to pay bills, but later found that the bills had not been paid. She had been very upset. Mrs Jones told Ms Bunter that she was scared of Camelo and scared of what was going on.
Ms Bunter was present at the inquest on 5 November 2007, sitting in court listening to the evidence. She was also present on 6 November 2007, on which day she gave evidence herself.
DSC Walton noted in his coronial statement that on the evening of 7 November 2001 Ms Bunter telephoned him asking to add to her statement. She said that the deceased had told her Carlos wanted her to sell her house as he needed $20,000 for a business.
Judith Hale was a friend of the deceased; her statement was made on 8 November 2001. Mrs Jones complained to Mrs Hale about the accused and Carlos living in her house. She thought Camelo was a bad influence on the accused. In Mrs Hale's observation the accused was very attached to Camelo.
Mrs Hale stated that the deceased had said the accused hit her on occasions, once breaking her spectacles. She thought this was about a year before Mrs Jones died. Mrs Hale thought her friend was very scared of the accused. On one occasion the deceased said that the accused wanted to get the deeds to Mrs Jones' house, and Mrs Jones spoke about changing her will.
Mrs Hale gave evidence to the coroner on 6 November 2007. She deposed that Mrs Jones had told her that the accused had assaulted her on occasion, in one such assault hitting her in the face and breaking her spectacles. Mrs Hale saw bruises on Mrs Jones' arms which Mrs Jones reported had been inflicted by the accused, who was bullying her. Mrs Jones reported herself to be too scared to telephone police about the abuse. She also said that she feared "the Colombian people", and Mrs Hale thought that she was also scared of the accused. Mrs Jones was always short of money because she was giving money to the accused, and she told Mrs Hale that the accused wanted to borrow $20,000 from her so that "they" could start a new business (Ex. DE-1, 260). Mrs Jones had been very upset by it.
In about March 2001, Mrs Jones told Mrs Hale that she wanted some security lights installed as she was concerned for her safety and asked if Mrs Hale's husband could help. Mrs Jones said that Paula - being Paolo Camelo, Carlos Camelo's wife - might be hanging around. Mr Hale installed the lights for Mrs Jones.
Mrs Hale agreed in cross-examination by counsel for the accused that she had not referred to seeing bruising on Mrs Jones in her police statement. She also conceded that Mrs Jones had expressed her fears for the accused rather than of the accused.
Therese Bendon was a colleague of the deceased, working with her at a Liverpool charity shop one day each week. In her statement of 9 November 2001, she said that she attended Mrs Jones' funeral that day where she observed the accused sobbing as she approached the deceased's coffin. She heard the accused say as she stood by the coffin, "Mum, I didn't mean it to go this far". Ms Bendon has since died.
DSC Walton also summarised the statement of Ronald Dallaway, a relative of Mrs Jones, which was dated 9 November 2001. Mr Dallaway stated that he heard the accused say the same thing to her mother's coffin at the funeral.
Mr Dallaway gave evidence before the Deputy State Coroner on 6 November 2007. He attended Mrs Jones' funeral on 9 November 2001 and, with Mr Sheldrick, supported the accused in the church when she approached her mother's coffin. He said that she had touched the coffin and said, "Mum I didn't mean it to go this far". Mr Dallaway asked Mr Sheldrick at the time if he had heard what the accused said but he had not. A woman who was nearby volunteered that she had heard it. Mr Dallaway reported the conversation to the police.
Mr Dallaway acknowledged that he had been sitting in court as witnesses gave evidence, although he said that he was "a bit deaf" (Ex. DE-1, 273). He deposed that, on 19 December 2000 at a wake held after the death of his father, he had spoken to Mrs Jones about the accused and Camelo wanting her to sell her house, advising her not to do so. The accused had walked between them as they spoke, and said, "I'm going to kill you" or "I'll kill you". Mrs Jones commented, "She always says that to me". Although Mr Dallaway had not taken the threat seriously, he had reported it to police. It was not, however, included in his statement.
Another work colleague of the deceased, Brenda Scott, stated to police on 9 November 2001 that the deceased had spoken about having trouble with her daughter's Colombian boyfriend, who had moved into her house and was sleeping in the same bedroom as the accused, which Mrs Jones did not like.
Wilhelm Zillken was a neighbour of the deceased who frequently stopped to chat with her when walking his dog. His statement was made on 9 November 2001. He stated that Mrs Jones had referred to arguments she was having with her daughter daily, frequently about Carlos. Things became so bad between them that Mrs Jones reported telling the accused that if she did not end her relationship with Camelo she would change her will and leave her house to charity.
Mr Zillken gave evidence at the inquest on 6 November 2007. He said that the deceased reported to him many arguments with Camelo, most of which concerned money. She detested Camelo and was afraid of him because he had stabbed his wife. She also mentioned to Mr Zillkin that the accused wanted her to sell her house. In July or August 2001 Mrs Jones gave Mr Zillkin an account of a conversation she had with the accused in which she told the accused to leave Camelo or she would change her will.
Mr Zillkin conceded in cross-examination that his evidence about Mrs Jones' fear of Camelo, who had stabbed his wife, was not included in his police statement. He said he had told the police, but they had said that it could not be included in the statement.
Noreen O'Donovan gave DSC Walton a similar account of witnessing a deteriorating relationship between Mrs Jones and her daughter, involving reports of physical violence associated with demands for money. Mrs Jones had shown Mrs O'Donovan bruising to her body that Mrs Jones said had been inflicted by the accused. Her statement was made on 8 November 2001.
Noreen O'Donovan gave evidence on the second day of the inquest. During her evidence she offered an addition to her statement, noting: "The only think that I would like to add is that the comment that I heard from the other man that was there before me, as what was said that 'Mum, I didn't mean it to go this far'. I also heard that." (Ex. DE-1, 296:37 - 40).
She said that she did not tell the police about what she heard on 9 November 2001 because police were present at the funeral.
Mrs O'Donovan deposed that, although the accused was taking Mrs Jones' pension from her, Mrs Jones would not report it as she was fearful the accused would use her greater weight and stature against her. The accused owed her mother money and there was trouble about a large Telstra bill, and about Mrs Jones leaving her property to the church and not the accused. About two or three months before her death Mrs Jones had told Mrs O'Donovan that the accused had hit her, breaking her spectacles, because of an argument about the house. She lifted her top to reveal bruising to her arms and upper body. The witness reported that Mrs Jones said she had taken the accused to the solicitor and had the house signed over to the accused. Mrs O'Donovan thought that had occurred six or seven months prior to the death of Mrs Jones.
She deposed that Mrs Jones had said that she was frightened to contact police because the accused was "very, very violent towards her" (Ex. DE-1, 303). She thought that Mrs Jones was so distressed that she had lost a significant amount of weight.
Jason Berryman provided a statement to DSC Walton on 16 November 2001. He said that the deceased had confided in him that Carlos was using the accused for money and wanted Mrs Jones to sell the house so that he could start a business. Mrs Jones told Mr Berryman that she intended to change her will so that the accused would not get her house if she married Carlos.
In a letter of 15 November 2001 to DSC Walton, Beatrice Cokerill, a friend of the deceased, described a letter she had received in October 2001 from Mrs Jones in which Mrs Jones said that the accused was pressuring her to sell her house and give Carlos $20,000 to go into business. Mrs Cokerill had mislaid the letter. She provided other letters to DSC Walton, including one in which Mrs Jones wrote that she had installed security lighting, as Camelo's wife was "up to something" (Ex. DE-1, 424). In another she told her friend about money she had loaned to the accused, and expenses Carlos had run up at her home.
Other witnesses told DSC Walton about the nature of the relationship between the accused and Camelo, the disputes between the deceased and the accused over money, the accused's intimacy with Camelo, and the deteriorating relationship between Mrs Jones and the accused.
DSC Walton referred to the interviews conducted with the accused, and separately with Carlos Camelo, Nicholas Soucoff and Sean Hardy. He listed the documents seized from the boot of the accused's car after the death of Mrs Jones, including financial documents, and documentation relating to the marriage of the accused in Colombia to Camelo's brother. He set out the inquiries made with various agencies and individuals, including the man that the accused had claimed had harassed her in a road rage incident on 31 October 2001, an incident the male denied.
DSC Walton ended his lengthy statement with his own conclusions and surmises, noting that Carlos Camelo had lied to the police about material matters, including his whereabouts on the night of 2 November 2001 and his use of a white utility; that the accused had also lied to investigators about matters including the nature of her relationship with Camelo and a planned trip to Colombia on 2 December 2001; and that the only suspects identified by police in their investigation were the accused and Carlos Camelo. DSC Walton was of the opinion that Camelo had commenced a relationship with the accused principally to extract money from her; that the accused had subsequently bullied and abused her mother to obtain money from the deceased; that Mrs Jones had become frightened for her safety and fearful of the accused and Camelo; and that the accused had murdered her mother, motivated by a desire to access her mother's estate, and perhaps in the context of an argument about money.
Only some of those who had made statements or reports to police were called at the hearing before the Deputy State Coroner.
Dr Dianne Little, the forensic pathologist who examined the deceased at post-mortem referred to two significant areas of injury, and twenty-two injuries in total. The significant injuries were "stab wounds" that entered the left side of the neck and penetrated "reasonably deeply" into the structure of the neck to just in front of the vertebra, and two ligature marks that intersected on the right side of the neck. The ligature marks were caused, in Dr Little's opinion, by something reasonably smooth and quite thin, perhaps two cords used simultaneously. The ligature strangulation would have caused death very soon after the attack. An approximate time of death was given as about 9.30pm on 2 November 2011, with a margin of error of plus or minus three hours.
Dr Little deposed that the stab wounds would not of themselves have necessarily led to death since no major blood vessel was injured. On that same basis there was no reason why a large amount of blood would have left the body, and the assailant would not necessarily have been stained with the blood of the deceased. Dr Little opined that, although it would have taken "some effort" to strangle Mrs Jones, great strength was not required.
Paolo Camelo made a witness statement on 4 November 2001 and was called at the inquest on 6 November 2001. In 2001 Mrs Camelo was married to Camelo and she blamed the accused for causing trouble in her marriage at around that time. She said that there was a considerable amount of information she had not put in her statement and gave a rather rambling account of various events. She said that Camelo had told her that the accused had asked him if he knew anyone who could kill her mother, but she didn't know if her husband had been making it up. He also told her that he would take the house off the accused.
Mrs Camelo said that, after the death of Mrs Jones, the accused had told her that Camelo owed her money and was using a car without her permission.
Mrs Camelo denied threatening Mrs Jones or taking any action to threaten or harm the accused. She said she got on well with Mrs Jones, although she had been angry with the accused because of her relationship with Camelo. Mrs Camelo said that her husband had stabbed her with a fork and been charged and convicted of assaulting her.
The accused and Camelo were both called to give evidence before the coroner but objected to doing so on the grounds of possible self-incrimination. Some other proposed witnesses were unavailable or had not been located. DSC Walton and Dianne McLeod were not available; Nicholas Soucoff and Therese Bendon had not been found (she is now dead); and Sean Hardy, who lived in Queensland, had not been served with a subpoena to attend.
At the conclusion of the proceedings the Deputy State Coroner found that Mrs Jones "died as a result of a violent act of homicide". The identity of the person responsible could not be determined, with his Honour observing that the evidence: "[…] certainly falls well short of the criminal standard where I could be comfortably satisfied in terminating the inquest and referring it to the Director of Public Prosecutions" (Ex DE-1, 343:23 - 26).
Formally, his Honour held: "But today, on the evidence that has been presented, I find that Irene Caroline Jones died on 2 November 2001 at 27 Huntingdale Avenue, Lansvale in the State of New South Wales from a ligature strangulation and stab wound to the left neck inflicted by a person or persons unknown. I do make a formal recommendation to the Commissioner of Police that a reward of $100,000 be approved by the government to be paid to any person or persons who provide information that may lead to the arrest and conviction of any person or persons responsible for the death or Irene Caroline Jones. And, I also recommend the referral of the entire brief of evidence, transcripts and all exhibits to the homicide unsolved crime unit for further investigation" (Ex. DE-1, 344:01 - 19; original capitalised throughout).

The Impact of the Investigation upon the Accused

The accused was interviewed by police on 4 November 2001, 7 November 2001, 21 February 2002, and finally in September 2019 when she was charged. From a very early stage in the investigation, she was a suspect and electronic surveillance was implemented by police, with a telephone intercept in place over the accused's telephone from 9 November 2001 to 2 February 2002, and a listening device active in the accused's home from 5 February 2002 to 25 February 2002. Further telephone intercepts were in place from October 2007 to April 2008; and from September 2018 to June 2019.
As the date of the inquest neared the accused was formally served with a brief of evidence, and a notice as a person with a sufficient interest, pursuant to s 17(1)(c) of the 1980 Act. By that, as the coroner observed at the conclusion of the hearing, the accused was put on notice that she may require legal representation.
In the weeks leading up to the hearing, and at a time when the accused's telephone service was the subject of lawful interception, she was recorded in conversation with friends expressing her anxiety about being arrested at the inquest. In a conversation on 15 October 2007 the accused reported to a friend that she had made arrangements to speak with a solicitor, acknowledging that "everything looks bad for me" (Ex. DE-1, 993), whilst asserting her dismay that others might think she had killed her mother. Her friend suggested that she "put the blame on Carlos" (Ex. DE-1, 996).
In an intercepted conversation the following day the accused again discussed the steps she had taken to secure legal representation at the inquest and expressed her concerns about her two children should she be arrested. She said she was "scared about going suddenly", referring to the possibility of being taken into custody without warning (Ex. DE-1, 1002).
On 19 January 2007 the accused told her friend that the solicitor she had consulted had told her, "They're gunna go for the murder charge on me", and "it probably doesn't look that good" (Ex. DE-1, 1005). She expressed her fear of dying in prison and referred to the expense of legal representation.
On 23 October 2007 the accused told her friend that she had been to the Coroner's Court and spoken to a forensic counsellor who had assuaged her fears that the inquest would be a "witch hunt" against her. She asserted her innocence of any involvement in her mother's death but noted her concern that things would be twisted against her. She said: "[…] it's just a waiting game […] I'm at the mercy of the court and I still have to prepare for the worst and hope for the best." (Ex. DE-1, 1014).
She said she was "worried that you can be convicted for a crime you never committed" (Ex. DE-1, 1017) and expressed her anxiety about the forthcoming inquest, which she was concerned "is not gonna be pretty" (Ex. DE-1, 1021).
The accused referred to the inquiries she had made with the Department of Community Services about foster care for her children, and her concerns that the children remain together should she be imprisoned.
The accused was present at the inquest, where the Deputy State Coroner assured family members that the police would not give up and recommended that the Unsolved Homicide Team review the matter, and that a reward for information leading to the apprehension of the person or persons responsible for Mrs Jones' murder be posted.
In September 2017 the Minister for Police approved a reward for information leading to the conviction of any person responsible. The evidence does not establish what publicity the approval of a reward received, or whether the accused was aware of it. It must be at least possible that she was.

The Yellow T-Shirt and Other Blood Stain and Forensic Evidence

When the accused fled her home on the night her mother was murdered, running to a neighbour's house for help, she was wearing pyjama pants and a yellow t-shirt. The t-shirt was torn generally vertically on the back, the tear being approximately 300 millimetres long. This was damage the accused said had been done by the blonde intruder. The shirt and the accused's other clothing were seized in the early hours of 3 November 2001 as part of the investigation.
The yellow t-shirt was taken by police officers to the Department of Analytical Laboratories ("DAL") on 30 November 2001 but was not subjected to forensic analysis at that time. It was later returned to police custody and retained as an exhibit.
On 3 March 2013 the yellow t-shirt was removed from its sealed packaging by Detective Senior Sergeant Welschinger and photographed. On 27 March 2013 the t-shirt was returned to DAL, by then known as the Forensic Analytical Science Service ("FASS"). Testing was carried out on the shirt on 24 April 2013.
The garment was returned to police on 3 September 2013, being held at the Crime Scene Services Branch until 23 October 2013, when it was returned to a police station for exhibit storage.
There was further forensic analysis of the t-shirt in 2017 at FASS, although the evidence of the precise movements of the exhibit is unclear (Ex. DE-1, 1205). It was resubmitted to FASS on 5 May 2017 and 9 November 2018 (Ex. DE-1, 1326 - 1327).
The t-shirt was also examined by DS Sarah Southall, an expert forensic crime scene examiner. By the time DS Southall examined the shirt on 21 July 2017 it had already been subjected to FASS examination, and the integrity of the exhibit was "compromised" by that examination or those examinations (Ex. DE-1, 1211). The officer conducted both visual and microscopic examinations of the t-shirt, and she examined DNA swatches taken from it by FASS, a swatch being a small piece of fabric cut from the original item.
DS Southall noted and numbered very small reddish-brown stains, assumed to be blood, at various locations on the front and back of the t-shirt; one to four on the front, and five and six on the back of the shirt. Testing to confirm that the stains were blood was not undertaken due to the smallness of the deposits, being less than 1 millimetre in diameter, and the need to preserve them. At the base of the t-shirt on the back were some hairs. A swatch was taken from stain two on the front of the t-shirt, and from the tear on the back of the t-shirt near stains five and six.
Microscopic examination of the stains showed them to be irregular in shape "due to the absorbability of the fabric and bloodstain application" (Ex. DE-1, 1216).
After considering all the information she had been provided, including crime scene information, DS Southall concluded that: "[…] the target (being the yellow t-shirt) was in the vicinity of the bloodshed incident and the stains had been projected onto the target and were not the result of transfer stain." (Ex. DE-1, 1217).
On 2 September 2019 DS Southall was asked to provide a further opinion about the yellow t-shirt, taking into consideration the account given by the accused of being assaulted by the blonde intruder when he was wearing white gloves stained with a red substance, and having regard to stain four on the front of the shirt in particular.
In her report of 2 April 2020 DS Southall noted that there were limitations to the opinion she could provide, including that stain four had been swatched by FASS and the swatch subsequently destroyed by the service, and that a scale used in a photograph of stain four was inaccurate. With those limitations, DS Southall noted that stain four: "[…] is approximately 4mm long and 2mm wide and appears to sit on the longitudinal thread only. I am unable to make a determination on the causation of this stain as it indicates no directionality or angle of impact and may present in this irregular shape due to the absorbability of the fabric and / or bloodstain application."
Having considered the forensic evidence in the context of the accused's account of being attacked by the glove wearing intruder, DS Southall observed: "No areas of transfer blood stains were evident around the neck area of the yellow T-shirt consistent with contact with 'blotched' bloodstained material gloves. Had the material gloves been bloodstained, and the blood was wet, there is a likelihood that transfer bloodstains would be evident around the collar of the yellow T-shirt, yet this was not the case. Stains apparent around the neck and collar area of the yellow T-shirt comprise predominantly of small spatter stains which are not consistent with transfer contact with a bloodstained item." (Ex. DE-1, 1255; emphasis in original to facilitate access to definitions of terminology rendered in bold text).
The officer thought that two small bloodstains on the doona removed from the accused's bed at the time of the murder were most likely spatter stains, and not transfer stains.
Overall, DS Southall opined: "The interpretation of the angles of impact of bloodstains observed on fabric is limiting and is dependent on fabric type, the method of blood application and numerous other variables. The size of the stains in the this examination, however indicates that the target (being yellow T-shirt) was the vicinity of a bloodshed incident and the stains had been dispersed onto the target as splatter and were not the result of transfer event. This opinion is based on the examination I conducted on the yellow T-shirt references in my statement (dated 14th August 2018). The lack of visible blood stain evidence on the neck area of the yellow T-shirt suggests that a transfer of a wet bloody object with the collar, as alleged by Megan JONES did not occur. The tear down the back suggests there may have been some form of physical interaction. With this physical interaction there would be expected to be some visible element of blood transfer to the area of interest." (Ex. DE-1, 1260 - 1261, emphasis in original).
The accused has retained Jae Gerhard, a scientist, to give evidence concerning blood deposition and analysis. Mr Gerhard is critical of the assumptions and opinions of DS Southall.
Dr David Bruce, a forensic scientist at FASS, conducted a DNA examination relating to the yellow t-shirt (report of 24 January 2020, Ex. DE-1, 1326ff). The date of the examination is not clear. The results from different areas of the shirt sampled were mixed. The most relevant results are: Sample area Result Exterior left shoulder DNA originating from at least two persons; deceased cannot be excluded as major contributor Exterior left sleeve DNA is a mixture originating from at least two persons; deceased cannot be excluded as a contributor Exterior rear left DNA is a mixture originating from at least two persons; deceased cannot be excluded as major contributor Stain right shoulder (human blood) DNA has the same profile as that of deceased Outside back right-hand side near centre Semen detected. DNA is a mixture originating from at least two persons; Carlos Camelo Gomez cannot be excluded as a major contributor. Traces of DNA from at least one other male individual may be present but at levels too low for further interpretation

The two black hairs collected from the yellow t-shirt were unsuitable for nuclear DNA testing. The swatches removed from the accused's doona could not be successfully tested for DNA.
In a further report of 16 September 2021, Dr Bruce provided information concerning the sampling and swatching of the yellow t-shirt.
The bath towel used by the accused on 2 November 2001, having been collected as an exhibit by police at the time, was sent to the Institute of Environmental Science and Research in Auckland in August 2017 for forensic examination. Jayshree Patel, a forensic scientist, examined the towel after its receipt on 8 August 2017. Ms Patel observed a number of areas of reddish-brown to yellow staining on the towel, two of which were tested for the presence of blood. Both tested positive for blood, and one of the bloodstained areas underwent DNA and mRNA [1] testing. The latter form of testing can identify the source of blood in the sample, including circulatory blood and menstrual fluid.
Ms Patel detected a mixed DNA profile on the sample examined, most likely originating with a male and a female, the female contributing most to the mix. No mRNA markers were detected, making it impossible to determine the likely cellular source of the deposit.

Other Forensic Evidence

The bath towel collected from the accused's en suite bathroom at the time of the murder was, in addition to having been examined by Ms Patel, examined for DNA by Dr Bruce at FASS. In his report of 24 January 2020, Dr Bruce noted that DNA recovered from an area of the towel that screened positive for blood was a mixture that originated from two individuals. The accused and Carlos Camelo could not be excluded as contributors to the mixture, with analysis suggesting that it was greater than 100 billion times more likely that the mixture originated from them than from two other unrelated persons in the Australian population.
The same result was obtained from tests of another area of blood staining on the towel.
In a report of 19 January 2022 Dr Bruce stated that the presumed blood staining on the towel was weak, and it was not possible to say whether the staining was deposited before or after the towel was laundered.
Dr Bruce also provided further information in his 24 January 2020 report concerning the yellow t-shirt worn by the accused when she ran to her neighbours for help on 2 November 2001. DNA recovered from an area on the exterior of the shirt, at the left shoulder, was a mixture that originated with at least two individuals. The deceased could not be excluded as the major contributor to the mixture. The same result was obtained from an area of the exterior left sleeve that was sampled, and an area on the left side of the exterior of the back of the t-shirt.
An area of staining on the right shoulder of the shirt where human blood was detected had a partial DNA profile that was the same as the profile of Mrs Jones. Statistically, it is 100 billion times more likely that the profile is that of Mrs Jones rather than of another unrelated individual in the population.
DNA extracted from another area of the t-shirt that was tested, the right of the exterior back, originated from at least two individuals, with the accused and Carlos Camelo not able to be excluded as contributors to the mixture. DNA recovered from the exterior back of the shirt, on the right-hand side near the centre, where semen was detected, is a mixture originating with at least two individuals, of whom Carlos Camelo cannot be excluded as a major contributor. Other DNA testing of the sample, using Y-STRs [2] , recovered a partial male DNA profile that is the same as the Y-STR profile as Carlos Camelo. In his report of 19 January 2022 Dr Bruce noted that semen and spermatozoa on fabric can still be detected after the fabric has been washed. On that basis Dr Bruce could not say whether the stain had been deposited after the t-shirt had been last laundered.
Other areas sampled on the front and back of the shirt revealed a DNA profile of mixed origin, where the major contributor to the mix has the same DNA profile as the deceased.
As to the likelihood of blood being transferred from blood-stained gloves to fabric, Dr Bruce gave the following opinion (in answer to question 4) in his 19 January 2022 report: "Published empirical studies have shown that there is significant transfer (greater than 90% - measured as percentage transfer) of a wet bloodstain from a non-porous surface e.g. plastic (primary substrate) to a porous surface e.g. cotton fabric (secondary substrate) under passive, pressure or friction conditions. However, the transfer of a wet bloodstain from a porous surface (e.g. cotton) to another porous surface (e.g. Cotton) is greatly reduced (0.2 to 1%). Moreover, the transfer of a wet bloodstain is markedly more efficient than a dry bloodstain for all primary and secondary substrate combinations and pressure conditions (mean value of 16% transfer for dry bloodstain, plastic to cotton with friction). The degree of transfer between the primary and secondary surfaces is a major variable for the positive transfer of the stain whether wet or dry (Ref 3). These findings are also supported by other studies (Refs. 4, 5)."
Therefore, it would be expected that a wet bloodstain on a non-porous surface such as a rubber glove would efficiently transfer to a porous surface such as a cotton t-shirt; however, this transfer would be significantly less efficient if the wet bloodstain was on a porous surface such a cloth glove onto a porous surface such as a cotton t-shirt. In addition, the transfer of a dry bloodstain between substrates is significantly less efficient than a wet bloodstain regardless of the primary and secondary substrates and the friction between the transfer surfaces.
A swab of the laundry sink in the deceased's house that was positive for blood on a screening test was further analysed, revealing a partial DNA profile that was the same as the profile of the deceased.

Interviews with the Accused

Also in evidence in the accused's case is the transcript of an interview between the police and the accused on 24 September 2019 (Ex. DE-2, 33ff); extracts from two earlier interviews, of 4 November 2001 and 21 February 2002 (together Ex. 4); and an extract of a "walk-through" interview held on 7 November 2001 (Ex. 5).
The interview of 4 November 2001 included in part in Ex. 4 was the earliest in time. The extracted portion, which encompasses Q&A217, Q&A255 - Q&A268, Q&A281 - Q&A290, and Q&A301- Q&A305 inclusive, principally deals with the accused's account of the events of 2 November 2001. At Q&A217 the accused described what had happened after she had a shower in her en suite bathroom on the night of her mother's murder: "I had a shower, I was in there for a while mmm, 'cause I had, had my period and I was getting a lot of cramps and the hot water helps and so I was in there for about twenty five minutes maybe, thirty minutes. Not always like in the shower but for probably about twenty minutes and then I spent five or ten minutes getting dressed in the bathroom, 'cause I took jamies in there with me. And I put a, a cleanser and a moisturiser on my face and then I walked out and there's this guy right in front of me and I, I didn't, I didn't know what to do…I was shocked and I couldn't breathe, I was frightened and I just thought run, and I, and I turned. I…get all the way around and then some something came over my neck and I was pulled back, I couldn't breathe. Then I, I went back because I wanted to breathe. And he pulled it tight and, and I…my arms around because I couldn't breathe and then I was back and then he threw me on the bed, pushed me. And he shoved my head in the mattress and he, he leaned on me and he let go of my neck and I, I went, I screamed but he shoved me down and I, I was struggled and I tried, I tried to get up and I sat to get up I arched my back 'cause he was leaning. And I, I'd gone forward and he pulled me back by the shirt and he ripped it. And I went to turn to look at him and he smacked me in the face, both my cheeks on the side, pound, pound, … and he kicked me and I was sore and my face went numb. And he got me by the throat again and I screamed. Then he pulled my pants down and he put his hand down there and…then I screamed. Then he, then he, got me by the throat and I couldn't breathe and then I screamed so loud with everything I had and then he left. And I was there, I couldn't breathe and even my legs were shaking and I just, I felt sick and I, I didn't know what to do, I was just ran, I just ran. And when I saw that there was no one in the house…went out, he ran around the other way, I just ran to where I saw light and I just…there's a man in my house. And, and they let me in and then I, I didn't know where my mum was and I said, Come with me, I want to go, I need to get my mum. And they wouldn't let me out of their house…go back there. And then I wanted to go down the road into my friend's place 'cause I thought maybe she had mum. And we had to wait there for the police. I'm sorry."
The accused described her assailant as wearing a beige or light-coloured long sleeve shirt with a skinny collar, and white gloves on his hand that were red with blotches. She said the male hit her in the face perhaps 15 or 16 times with his hands and knee. She said (at A305, Ex. 4): "I got kicked. Punched in the face and …. the mattress trying to get up and I turned my neck and he slapped me, punched down and hit there and …. and I'm sore there. …up here, it's very sore. I got hit in the mouth there but my jaw on each side is sore, especially this one 'cause I turned left in order to look 'cause my nostril went that way 'cause I was trying to breathe so I turned that way."
In the extracted portion of the "walk-through" interview with the accused on 7 November 2001, being pp.16 - 28 and 34 - 36, Ex. 5, the accused was asked about events after she walked out of the bathroom on 2 November 2001. She said that having seen the intruder, she turned intending to leave the house through an external door in her bathroom, but she was pulled backwards by a cord or rope around her neck that was pulled tight. Later describing the ligature as a "yellowy" coloured computer cord with "a bump in it" (Ex. 5, 20), or a "radio cord" (Ex. 5, 21) she said she tried to get her hand up to pull the cord down but could not, as it was too tight.
The accused said that when she tried to get up from the mattress onto which she had been pushed, "I got yanked back by my shirt" (Ex. 5, 25). When finally able to escape the assailant the accused said that she put her slippers on and ran.
She was asked about whether she had seen the man's hands and said, "They were white" (white gloves) (Ex. 5, 34). The accused said that when she first saw them they were plain white gloves, "but when he went over my head they were red" (Ex. 5, 35). The accused referred to red stains, which she saw when the assailant opened his hands, the stains being on the palms, where there were blotches "everywhere", with some further stains around some of the fingers (Ex. 5, 35).
The extract from the interview of 21 February 2002, part of Ex. 4, contains Q&A321 - Q&A400, Q&A474 - Q&A494, Q&A526 - Q&A541. These extracts also deal principally with the events of the evening of 2 November 2001. At Q&A323 the accused described what happened after the intruder pulled a yellowy coloured cord tightly around her neck. She said: "I couldn't pull it, he was too strong, it was cutting, like, hurting, and it was burning. So I, I walked back with him, he pulled me across my bed and I walked back 'cause I wanted to breathe. And the grip was still firm and I was, I didn't know what to do. I was just, I, I, I thought I was gunna die. I, I was still tryin' to breathe properly, and then he had, he threw me forward and pushed my face down. But my nose twisted on the side like that, so I could breathe. And I tried looking, I looked this way, 'cause I was gunna try and get up and have a look this way, and then I got hit in the face here - -".
The accused told the interviewing police that the intruder pulled her back and ripped her shirt. The shirt had been torn as the male pulled her back "by my clothing" (Q&A331). She later added (at Q&A358 - 359): "A: - - - and at one stage he actually ended up off me, and that's when I went to go, get up and go. But he grabbed me by the, my top and pulled me, pulled me back down and I fell back down. A;: And then he had totally ripped it, and that's when he started pulling my pants down".
The same assertion about the ripping of the accused's t-shirt was made at Q&A373 - Q&A374 and Q&A382 - Q&A384.
At Q&A476 - Q&A480 the accused was asked whether her attacker had anything on his hands. She said: A: He had the white gloves, I, that was in the other one. I was just concentrating on the face sorry. Q477: And what sort of gloves were they? A: White gloves. Q478: Do you know what they were made out of? A: Material. They weren't the latex ones that doctors use in surgeries. Q479: They were just plain white? A: Yeah. Oh, they had, I realise they had bloodstains on them.
In the September 2019 interview with DSC Sally Clark the accused expressed her willingness to answer questions but stressed that she had no further information to give. She said even though she was aware the investigation had continued, no further information had come to her.
The accused was asked about the injuries she received on 2 November 2001 during the attack upon her and referred to a back injury that continued to plague her, and a sore throat with internal bruising. She said there had been virtually nothing visible on the outside of her neck because she had her "finger under it", "it" being the ligature, but she did have "marks" or "lines" on her fingers (Ex. DE-2, 48).
The accused was asked to give some further detail about what had happened after the intruder pulled her pants down and described the digital sexual intercourse that followed. She said she had not referred to it in interviews at around the time of her mother's death because she had been told by the detective that it was irrelevant. The accused said that the detective: "[…] said 'We don't need to talk about that'. He said it wasn't penis penetration so we don't consider that sexual assault or rape" (Ex. DE-2, 63).
The accused spoke about Carlos Camelo, maintaining her earlier denials that she had been in an intimate relationship with him prior to and at the time of her mother's murder, asserting that her son, born in November 2002, had been conceived during a single isolated sexual encounter with Camelo. The accused said that she had never engaged in any sexual activity with Camelo prior to her mother's murder, and only on one occasion after it. He had only ever been her friend.
Whilst Camelo lived with the accused and her mother for a time before Mrs Jones was murdered, the accused said that Camelo had his own bedroom. She agreed that she had loaned him money from time to time and had given him money to send to his family in Colombia, helping him out as a friend.
She said that she had believed that she was in love with Cesar Camelo at the time, but now feels that she was "used for immigration" (Ex. DE-2, 79). Prior to her marriage to Cesar, she and her mother chose a white wedding dress from a bridal shop at Westfields at Parramatta. The accused claimed that her mother had known that she was to marry Cesar in Colombia but may have wanted to keep it quiet.
The accused said that "pretty much when he got off the plane" she had felt Cesar to be distant from her and suspected the marriage may have been for immigration purposes (Ex. DE-2, 86).
The accused was asked about the clothing she had worn when she was assaulted on 2 November 2001, but said she only remembered having worn pyjama pants with a teddy bear pattern. Her memory of the yellow t-shirt, even when shown a photograph of it, was vague. She could not recall if the t-shirt was clean when she put it on that night, or if she had worn it on previous nights. She was not able to explain how her mother's blood could have been deposited on the front of the t-shirt, since she had no interaction with her mother after her shower on 2 November 2001, and nor could the accused explain how Carlos Camelo's semen could be on her shirt.
The accused was asked about her relationship with her mother but denied that she had been aggressive or bullying to Mrs Jones, or that there had been any occasion on which she had broken her mother's glasses or choked her. The accused said her mother got along alright with Camelo, although she had become a bit sick of him.
The accused said that some property had been stolen on the night of 2 November 2001 - Christmas presents and a diamond ring.
The accused was also asked about the trip she made to a local petrol station on the evening of 2 November 2001, with the information now known to be incorrect concerning the possible presence of Camelo put to her as likely fact. She insisted - correctly on what is now known - that she had paid for the petrol she bought herself and had not been with Camelo at the service station. Evidently confused by the incorrect information, the accused said:
"I don't know wh, I don't know what to think anymore. I really don't know what to think anymore. Oh, sorry. I don't know what to think anymore. I really don't. This has fully freaked me out. This is really freakin' me out… Hoo, Hoo. I feel like no-one's actually tellin' me the truth. Not meaning personally, you know what I mean, like, I feel like, Oh, I don't know what to think anymore. I know I went and got petrol. I know I paid for petrol. That I know. And how this, I, I don't know. I can't explain it. I really can't.".( A2542 - 1543; Ex DE-2, 188)Having been shown the footage from the service station that was purported to show Camelo, the accused suggested that her attacker may have been Camelo, a thought that she said scared and sickened her. She said: "I don't even know what to think anymore. I know I didn't hurt my mother. I know that" (Ex. DE-2, 192).
Towards the end of the interview (at Q&A1809 - 1810; Ex DE- 2, 218 - 219) the accused commented: "Oh, I, I'm just, I'm just really, like, I'm, I'm shell shocked. I'm overwhelmed. I'm, I just, I, I mean just the things you were, the photos and everything and ss, the ss, I'm trying to remember, like, 17 years, 17, 18 years ago now and, oh, I can't remember what I did, like, the week before, let alone 3 days before. Um, yeah. That's it, um, yeah, it, 17, 18 years and you, I can't even remember, like, all that I was wearing. Some things stay in your memory and some things go. Like, I don't know what I had to eat at Hungry Jack's. Like, I can't remember. I'm sorry. I - - - I just, yeah. I, there's things I just can't, I, you have, af, after 18 years, you forget certain things, things you remember and then there's things that you forget."

Oppression of the Accused

The accused relies upon both the long and drawn-out nature of the police investigation, and the emotional toll it has taken on her, as evidence of the oppressive and vexatious nature of these proceedings.
At the time of the coronial hearing the accused was anxious about what would become of her children should she be taken into custody, a subject she discussed with others by telephone at the time: see [112]- [117] above.
The accused also referred to that concern when she was arrested in September 2019. When interviewed following her arrest the accused said (at Q&A 41 - 42): "Cause it's, it's a bit daunting when - - - - - - you leave to take the kids to school and people are coming up to you with a camera and just, Are you such and such and I'm like, Yes, what's going on?"
She also told the interviewing officers that she had felt at the time of the initial investigation that it was not properly handled, and she felt that it was she who was "being looked at as a very easy target" (Ex. DE-2, 63). She said that, instead of looking at all possibilities, the police had focused on her alone. She said on a number of occasions that she had found it very difficult to cope in the aftermath of her mother's death.

The Crown Case in Reply

The Crown produced Ex. A, a version of the earlier material designated Ex. CE-1, containing a quantity of further witness statements and other documents, the Crown's evidence also having been substantially amended during the hearing of the application.
In addition to those witnesses nominated by the accused as witnesses for the Crown who have only recently provided statements, several other statements newly obtained from witnesses form part of the brief of evidence which has been served on the accused since she was charged in September 2019. They include witnesses whose evidence is relevant to the nature of the accused's relationship with Carlos Camelo prior to and around the time of her mother's death; police officers who had some interaction with the accused or Carlos Camelo that is or may be of relevance to the nature of the relationship between Camelo and the accused; and further forensic evidence.

Evidence Concerning the Relationship with Carlos Camelo, and with Cesar Camelo

Listening device product referred to by DSC Sally Clark from February 2002 points to an intimate relationship between the accused and Camelo, including portions that appeared to police to record sexual activity between them and discussion about that sexual activity.
Kerri-Anne Wall gave a statement to police on 7 November 2001 in which she recorded her observations of the developing relationship between the accused and Carlos Camelo. Between February and May 2000, the accused spoke about Camelo frequently to Ms Wall, and told her, amongst other things, that she had bought a mobile phone for Carlos so that the accused could telephone him without having to speak to his wife; that Carlos had told the accused he loved her and wanted to leave his wife for her; and that the accused wanted to marry Carlos.
Around February 2001 the accused left her mother's home and moved to reside with Ms Wall. The accused told Ms Wall that her mother was "a bitch" (Ex. A, 51). The accused continued to talk about Camelo and have contact with him when she was residing with Ms Wall, allowing him to stay at the premises. The accused moved out in May 2001.
Ms Wall made a second statement on 9 November 2018.
On 22 January 2003 - that is, after Cesar Camelo had arrived in Australia -Constable Tracey Middleton recorded the details of a complaint made by the accused about a domestic assault upon her by Carlos Camelo. The accused told the officer that she had known Carlos Camelo for about four years and been in a relationship "on and off" throughout that period (Ex. A, 119). She said she and Camelo were living together at Merrylands with their 2-month-old son. The accused told Constable Middleton that she had confronted Carlos about an affair he was having, and he became angry and hit her in the mouth. An event entry was made contemporaneously on the police computer system (Ex. A, 120)
Documents relating to the accused's application for spousal migration for Cesar Camelo are relied on by the Crown to point to the sham nature of the relationship with Cesar.
Cards and letters directed to Cesar evidently written by the accused, such as a letter dated 5 September 1999 on its face (Ex. A, 19), were found by police in the accused's possession at the time of her mother's murder.
Other documents record the accused's written communications with Cesar and what appear to be written memory prompts to herself of events in the relationship to be recounted to others. In an email of 28 March 2001, the accused counselled Cesar about letters each was to write to the other, suggesting that he mention particular things as: "we have to spark a [sic] interest in each other soon, in another 4-5 letters (7 month period) we will introduce email and letters dated every three days to each other […] in the email letters we will make it develop into more of a romance with each other up until my arrival in Colombia, then we need letters after I have left Colombia to prove that the relationship is continuing […]" (Ex. A, 15).
The accused went on to provide a long list of things each had to send to the other, bearing past dates in a chronology, such as Christmas and birthday cards and "romance cards". For December 2000, the accused noted: "# December you propose to me, we discuss wedding plans I decide I want to marry you in Colombia. you send deep meaningful love letter in a card" (Ex. A, 15).
On the evidence of Julie Clingan, referring to receipts for monies paid towards the purchase of a wedding dress by the accused on and from 25 June 2000 (Ex. A, 42; 44), the accused purchased a wedding dress some six months before it is asserted by her that Cesar Camelo asked her to marry him.
Other evidence contradicts the accounts of her relationships with both Carlos Camelo and Cesar Camelo.
A telephone intercept of 20 December 2001 records Carlos Camelo in conversation with Cesar Camelo, during which Carlos inquires after Cesar's well-being, having learnt from their mother that Cesar, who was still living in Colombia, had "separated from Sonia". Carlos goes on to inquire of his brother, "the girls you have other there right?". Cesar responds in the affirmative (Ex. A, 62), and they later discuss whether the girls "fuck", which Cesar confirms, reporting "it's all good cattle" (Ex. A, 70).
In the accused's application for divorce (Ex. A, 129) she gave the date of her separation from Cesar as 16 January 2003, being only two or three months after he entered Australia.

Oral Evidence - the Police Investigation

DSC Sally Clark of the Unsolved Homicide Team ("UHTeam") was called by the Crown and made available to the accused for cross-examination. DSC Clark provided a statement of 2 February 2022 (Ex. A, 1). In her statement the detective noted that the UHTeam was formed in 2004 to review unsolved homicides that had occurred between 1970 and 2001, observing that the end date was subsequently extended. Until July 2008 the Team's role was to review such cases, as opposed to investigating them, with the UHTeam only taking on an associated investigative role from July 2008.
DSC Clark's oral evidence was given on 15 and 16 February 2022 and was directed principally to the chronology of the police investigation into Mrs Jones' murder. DSC Clark became involved in the investigation in approximately August 2017. From about the middle of the following year she was allocated or became Officer in Charge of the continuation of the investigation.
DSC Clark had been asked by the accused's representatives in advance of giving evidence to review a voluminous quantity of material that had been produced by the NSW Police Force under subpoena, amongst it, copies of the Duty Book entries relevant to the investigation made by various officers, including DSC Walton, over time. By reference to that material and from her own observations after August 2017, she gave evidence of the general progress of the investigation.
DSC Clark agreed that the accused was identified as a suspect no later than 5 November 2001 and thereafter various investigative strategies, such as electronic surveillance, were undertaken. Where a listening device was in place police procedure was for the product to be monitored live by an officer, who recorded the time stamp and details of anything heard that could be material to the investigation in a running log. The log, recording information gained during the period 5 to 25 February 2002, frequently referred to the sounds of sexual activity heard at times when the accused and Carlos Camelo were together in the premises and under electronic surveillance.
DSC Clark accepted that DSC Walton regarded the accused as the likely murderer of her mother at this time and later but had no information beyond that officer's coronial statement from which to assess his reason for not charging the accused in 2002, or 2005, by which time DSC Walton had readied the matter for inquest.
Detectives Walton and Cox continued to make inquiries and carry out other work relating to the investigation throughout 2002, but DSC Walton's Duty Book entries recording work undertaken on the investigation were fewer towards the later months of 2002. He was, however, still undertaking some inquiries, recorded in a general way in his Duty Book, in 2003 and 2004. From time to time DSC Walton spoke to the accused, but there is no contemporaneous account of those contacts with her.
DSC Walton had various discussions over time with the Coronial Advocate as to the conduct of the inquest with meetings and discussions occurring in 2004 and 2005, and more frequent discussions in the period 26 May 2005 to 18 November 2005. Despite this, the inquest did not take place until 2007, and DSC Walton made no entries in his Duty Books relevant to the investigation between 18 November 2005 and 13 March 2007.
Around August 2007 DSC Christine Meszaros took over investigative duties from DSC Walton, and it was she who readied the matter for the inquest in November 2007. Among the inquiries made by DSC Meszaros relevant to Mrs Jones' murder were inquiries with the NSW Crime Commission ("NSWCC") concerning electronic surveillance of the accused (which ultimately yielded nothing of relevance).
On 12 October 2007 the coronial brief of evidence was served on the accused by DSC Meszaros, in readiness for the inquest held on 5 and 6 November 2007.
At the conclusion of the inquest, the Deputy State Coroner recommended that the investigation be referred to the UHTeam. DSC Meszaros continued to undertake some work on the investigation thereafter, and she continued to liaise with the NSWCC.
In April 2011 the UHTeam commenced a review of the brief, which was partially completed by DSC Kellie LeVien on 24 October 2011. Around February 2012, DSC Kim Fidden commenced inquiries and gathered and assessed police holdings relevant to the case.
In June 2012, with the inquiry designated Strike Force Trancas 2, DSC Matthew Heffernan was assigned to the review, and completed it around September 2012. Coming into the matter when he did, DSC Heffernan had to consider all material held by the police to complete his review.
DSC Clark deposed that, as a general statement, the review process relating to unsolved homicides is difficult, and such reviews are undertaken in accordance with the priority assigned to each. The UHTeam can have as many as 700 unsolved cases to review, and resources are finite.
Between March and September 2013 DSC Heffernan conducted a number of inquiries into the Jones murder. No work was completed on the matter between September 2013 and March 2017 because of resources being allocated to other murder inquiries, including the 1980 - 1985 bombings connected to the Family Court that involved multiple murders and other serious crimes.
On 2 March 2017 DSC Heffernan returned to working on the inquiry, with DSC Melanie Staples to assist him. He contacted FASS and there was a major review undertaken. Several witness statements were obtained, with the first "new" statement obtained in June 2017. DSC Heffernan continued to make inquiries into 2018 but his involvement lessened.
The possibility of further forensic investigations was considered in 2017 and after, and ultimately there were further examinations made of the accused's bath towel and yellow t-shirt.
DSC Clark's own involvement in the investigation commenced in August 2017 and increased over time. When she first commenced working on the inquiry she was also working on another unsolved homicide, but by June 2018 almost all her working days were spent on the Jones matter. Detectives Heffernan and Staples were involved in other cases. DSC Clark made numerous inquiries in 2018 and 2019, with the assistance of DSC Heffernan from March 2019. DSC Heffernan carried out a review of the CCTV held by police relevant to the matter, drawing the (now known to be) mistaken conclusions about the service station CCTV from the evening of 2 November 2001.
One step taken in 2018 - 2019 was to place the accused under further electronic surveillance, but nothing of relevance was revealed.
Referring to the accused's asserted inability to access records of money transfers completed through Western Union that were more than five years old, DSC Clark noted that she had come across AUSTRAC records relevant to the accused that had been requested by DSC Walton in 2005. Three transactions were reflected, being a transfer of monies by the accused to Austria, and two withdrawals made in Parramatta, all in 2002. She said that AUSTRAC records all international money transfers, and transactions within Australia of $10,000 or more.
DSC Clark was asked about the pace of the police investigation once it was referred to the UHTeam. She did not agree that it had proceeded slowly, observing that the speed of an investigation is relative, and falls to be assessed within the overall context of the work undertaken by the UHTeam. Inquiries by that unit were large and complex, and each inquiry had to be prioritized against the substantial volume of inquiries on hand at any time. DSC Clarke had dedicated most of her working days to the renewed investigation since taking over as Officer in Charge.

For the Accused

The accused argues that the unexplained delay in commencing the criminal prosecution against her is extreme and, when taken together with the unfairness occasioned by the conduct of the 2007 coronial inquest into Mrs Jones' death, has resulted in proceedings which are "unreasonably burdensome and so unfairly and unjustifiably oppressive as to constitute an abuse of process". Reliance is placed, in particular, upon the decisions of Jago v The District Court of New South Wales (1989) 168 CLR 239; [1989] HCA 58; Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77; and Gill v Walton (1991) 25 NSWLR 190.
The accused does not submit that she has been caused irremediable forensic disadvantage in the conduct of the trial, but that she has been caused significant prejudice in the conduct of her defence, and that this is an important matter to be weighed in considering whether the continuation of the proceedings against her amount to an abuse of process.
Whilst pointing to the general deficiencies that the lapse of time can cause, such as erosion of the memories of witnesses, the accused has identified particular prejudice as arising by reason of the lengthy delay between Mrs Jones' death and the criminal proceedings. It is contended that the unavailability of Carlos Camelo, Cesar Camelo, Maureen Young and others as witnesses will cause forensic disadvantage to the accused in her case.
With respect to the first of these witnesses, it is argued that, had the accused been charged and tried prior to the motor vehicle crash in which Carlos Camelo was injured in 2013, she would have been able to cross‑examine him in relation to matters potentially helpful to her such as his observations of her relationship with Cesar Camelo, his manipulation of the accused for financial gain, and perhaps an immigration advantage to his brother. More importantly, Camelo could have been cross-examined about his possible involvement in the murder of the deceased, perhaps with Sean Hardy and Nicholas Soucoff; his motivation for it, potentially being his belief in the accused's inheritance of the Jones house in the event of Mrs Jones' death, or his brother's possible inheritance in the event of the death of both of them; his inability to explain his whereabouts at the time of the deceased's murder; and lies told to the police and others about matters essential to the offence.
The lapse of time has compounded the disadvantage of Camelo's unavailability since it will not be possible to cross-examine Hardy and Soucoff as to the time of particular events on and around 2 November 2001. The memories of each, on the evidence, are exceptionally sparse.
Although previous representations made by Carlos Camelo, and others, such as Hardy, Soucoff, and Maureen Young may be tendered before the jury, evidence adduced in that way is less favourable to the accused than the cross-examination of relevant witnesses.
It is contended that further prejudice has been occasioned to the accused through certain inadequacies in the police investigation, being the failure to interview some potential witnesses contemporaneously to the events, and the potential contamination of evidence caused by the presence of witnesses at the coronial proceedings, which cannot now be remedied.
Witnesses who might have been able to attest to the day-to-day life the accused shared with Cesar Camelo in 2003 were not interviewed at the time, and the detail that such witnesses might have provided to support the genuineness of the relationship is now lost.
Some or all the witnesses who gave evidence before the inquest sat in the court room during the hearing and listened to the accounts of other witnesses. The possibility that evidence was contaminated by one witness accessing the accounts of others is clear but cannot now be undone. An example of evidence tainted in this way was given by reference to the progression of evidence given by Margaret Bunter, in her 2001 statement, her 2007 coronial evidence, and her 2019 statement.
Acknowledging that delay, even very lengthy delay, between crime and prosecution is not ordinarily enough to justify the granting of a permanent stay of criminal proceedings, the accused submits that her case is different, in that "the essential Crown case" against her was known to the Crown two decades ago and has not materially changed. The failure of the Crown to explain the delay is significant in circumstances where the accused could have been charged relatively soon after Mrs Jones' death.
The accused submits that, in that context of forensic disadvantage, the fact that she has already suffered as a consequence of having been conspicuously suspected by police of having murdered her mother at the time and facing the 2007 coronial inquiry as a person of interest, adds to the oppressive nature of the present proceedings.
As the accused complained when she was interviewed in September 2019, her impression has been that investigators were only ever interested in her as a suspect, and she felt unfairly targeted. Her knowledge of the police suspicions has given her much cause for anxiety, particularly in relation to the care of her children and the impact of the proceedings over the years upon them. Instead of being reassured by the outcome of the inquest that the police investigation would be renewed and soon completed, her fate hung in the balance for over a decade thereafter, entrenching the oppressive nature of the proceedings.
She argues that, whilst the serious nature of the charge for which she is to be tried is a significant factor in determining the present application, the weight to be given to that feature is diminished because "the purposes of crime and punishment have simply not been thought important enough by the state to warrant prosecution". It is contended that there is no reasonable justification for the failure of the police to charge the accused in 2002, and the delay in doing so must be regarded as unreasonable.
The accused contends that the cumulative effect of the delay, a delay brought about at least in part by disinterest, taken with the adverse impact these proceedings have had on the accused over time, causes the prosecution to pass onto the side of unfairness and oppression; unfairness and oppression that the Court should not tolerate.

For the Crown

Referring to the heavy burden placed upon an accused person who seeks to establish that a permanent stay of a criminal prosecution is warranted, the Crown submits that the accused has failed to establish that hers is such an exceptional case as to justify the extreme remedy of a stay being granted.
The Crown concedes that there has been delay in bringing the accused to trial and acknowledges that there is no single piece of newly discovered evidence that has dramatically changed the nature of the case against the accused as it was much closer in time to the death of Mrs Jones. It is submitted that this is not determinative of the question of the unreasonableness of delay.
The Crown argued that it is a flawed premise to suggest that there needs to be new evidence to justify a delayed charge, and: "[…] it would be frankly abhorrent if the police were not able to, for whatever reason, review such an important matter, and, if appropriate, come to a different view, and what the long history of this matter shows, I would submit, is, there certainly was careful attention by the relevant police that they took different views at different times about the matter, but there was no malice, and they took care in what they did" (Transcript of 16 February 2022, 138:44 - 49).
It is not conceded that the delay has been unreasonable; although, even if it was, it is submitted that a permanent stay does not follow axiomatically.
Accepting that delay leads to disadvantage, the Crown disputes the extent of the disadvantage in the present case. It is argued that some of the disadvantage referred to by the accused is speculative or, properly analysed, no disadvantage at all. The example of the unavailability of Carlos Camelo is an example falling into the latter category in the Crown's submission, with Camelo's unavailability to answer an allegation that it was he who murdered Mrs Jones leaving the allegation unrepudiated by a witness on his oath.
Falling into the former category is evidence that might have been given by Maureen Young, Nicholas Soucoff, Sean Hardy and others. It is submitted that there is no more than a speculative possibility that any of these witnesses may have given evidence of assistance to the accused, and the weight to be given to this feature is thus reduced.
Evidence that might have been given by Cesar Camelo is also a matter of limited weight, because the relevant period during which the accused's relationship with the Camelo brothers is of significance to the allegation against her is 2001, not 2003. Cesar Camelo was not in Australia in 2001, not entering the country until 25 October 2002, a matter of days before the birth of the child of the accused and Carlos Camelo.
According to the accused's application for divorce, she separated from Cesar within a few months of his arrival in Australia. The weight of the evidence is that the accused was emotionally and sexually involved with Carlos in 2001 and into 2002 and no account given by Cesar could challenge that evidence. It is submitted that it cannot be assumed in any event that his evidence as to the nature of the relationship would be as the accused predicts, and if it were, there is a volume of evidence available to the Crown by which to discredit Cesar's account.
Also speculative to a degree is the question of the extent of contamination of witness evidence by the coronial proceedings. Accepting that there is some evidence of contamination, the Crown argues that it does not rise to the level of a fair trial not being able to be possible.
Such forensic disadvantage as may have been occasioned to the accused by the passage of time does not dictate that her trial will be unfair, and remedies other than a permanent stay, such as the procedure made available in s 65(8) of the Evidence Act exist to address such disadvantage. Such measures will most appropriately be determined at trial.
The Crown contends that the accused's claim that the proceedings are vexatious and oppressive when regard is had to the history of her being treated as the principal suspect for her mother's murder, raises no more than the sort of difficulties faced by many accused persons who are subject to suspicion and then criminal charge, and cannot amount, alone or in combination with the other features raised, to oppression sufficient to require a permanent stay of proceedings.
The Crown referred to the balancing exercise that must be undertaken in this matter, balancing all those matters raised by the accused in support of her application against the substantial public interest in seeing a charge for "the most serious crime in the criminal calendar" determined before a court in public proceedings.
Pointing to the considerable public interest in seeing a murder allegation determined before a court, the Crown submits that nothing raised by the accused is adequate to conclude that proceedings against her constitute an abuse of process.

Determination

The starting point for any application for a permanent stay of a criminal prosecution is to recognise the extreme and exceptional nature of the remedy sought by the accused.
It is a long-established principle that, for a permanent stay of a criminal prosecution to be granted, there must be a fundamental defect going to the root of the trial such that nothing a trial judge could do would relieve against the unfairness occasioned to the accused: Barton v The Queen (1980) 147 CLR 75 at 111; Jago at 34; The Queen v Glennon (1992) 173 CLR; [1992] HCA 16 592 at 605; Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at 245. Underlying the power of the court to grant a permanent stay is the court's inherent jurisdiction to prevent an abuse of its process, as was observed by Richardson J in Moevao v. Department of Labour [1980] 1 NZLR 464 at 482: "The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor [...] that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court."
That formulation of the principle was cited with approval by Mason CJ in Jago, at 30.
Since the categories of circumstances that will demand a permanent stay of proceedings is not closed, it is necessary to evaluate the particular circumstances relied upon by the accused, weighed in the context of the multifaceted public interest considerations that apply, including the maintenance of public confidence in the administration of the criminal justice system: Walton v Gardiner at 395-396; Dupas at 251, [37]. The public interest in ensuring that those charged with criminal offences, particularly very serious crimes such as murder, will face trial is a very significant feature to be considered in that evaluative process. In Darwiche v R [2011] NSWCCA 62 the process was described, at [172] thus: "A permanent stay of criminal proceedings is a wholly exceptional intervention into the processes of the criminal law, and the public interest in ensuring that persons charged with crimes are tried ought to carry significant weight in the necessary balancing process where a stay is sought: R v WRC [2003] NSWCCA 394; 59 NSWLR 273 at 282 [55]-[56]; Dupas v The Queen [2010] HCA 20; 241 CLR 237 at 251 [37]. The onus of satisfying the court that there is an abuse of process lies upon the party alleging it and the onus is a heavy one: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529. The question of whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations, including the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice": Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 395-396.
The factors to be weighed in the balance that are relied upon by the accused are the long delay in charging and prosecuting the accused, a delay contended to be unreasonable; the consequences of that delay including the forensic disadvantage to the accused; and the anguish occasioned to the accused over the years of being first a suspect and now an accused charged with murder.
It cannot be disputed that the period between the murder of Mrs Jones on 2 November 2001, the charging of the accused almost 18 years later in September 2019, and a trial date in February or March 2022 is a lengthy one. Roughly two decades have passed since relevant witnesses made observations and gave statements, and forensic evidence was gathered. Inevitably, with the passage of time, evidence has been lost, witnesses have died or otherwise become unavailable, and the memories of those who remain available may or have deteriorated.
It cannot be disputed that the accused, over those two decades or so since her mother was murdered, has been treated as the principal suspect in the murder, both by police and, it seems, family and neighbours. The evidence is that the accused was regarded by investigating police as the probable murderer from 5 November 2001 at the latest. Some of the testimony given before the Deputy State Coroner in November 2007 suggests that those around the accused held the same belief, at least from the date of her mother's funeral on 9 November 2001. That strong suspicion was given formal voice during the inquest in the conclusions reached in the Coroner's Court.
I accept those propositions at the outset. The question is whether the delay of about 18 to 20 years and the asserted unreasonable nature of it, when taken in conjunction with the oppressive nature of the proceedings that the accused contends for, compels the conclusion that the continuation of the prosecution would involve such oppressive unfairness, incapable of being overcome, that it would constitute an abuse of the process of the Court for the prosecution to continue.

Delay

Some delay between the commission of a crime and the commencement of a criminal prosecution against an accused is not unexpected. It is not uncommon for the extent of that delay to be measured in years. It is not unheard of for a delay of years to have led to significant forensic disadvantage to an accused, including the loss of evidence. That does not of itself lead to any trial being unfair, as was stated by the High Court in The Queen v Edwards (2009) 83 ALJR 717; [2009] HCA 20 at 722, [31]: "Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair" (footnote omitted).
See also R v Adler, Court of Criminal Appeal (NSW), 11 June 1992, unrep; R v Goldberg, Court of Criminal Appeal (NSW), 23 February 1993, unrep; and R v McCarthy, Court of Criminal Appeal (NSW), 12 August 1994, unrep.
Because of the passage of two decades, I accept that the accused has lost the opportunity to fully or properly test evidence that might be led in the Crown case, or to test it at all; and to adduce some evidence in her own case. I do not accept, however, that the disadvantage is as profound as is contended for.
As a general statement, the greater the delay between event and the taking of the testimony of a witness, the greater is the likelihood that the quality of the evidence will be compromised. Memories can fade or evaporate altogether. Because it is the Crown that bears the burden of proving an accused person's guilt beyond reasonable doubt, it is not necessarily the accused, however, who will suffer the greatest prejudice by the operation of that ordinary phenomena, because: "[…] in the context of an accused being entitled to the benefit of any reasonable doubt, the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case" (Jago, at 61, per Deane J).
The particulars of prejudice given by the accused are, in that context, somewhat overstated in my conclusion.
The unavailability of Carlos Camelo due to delay is one aspect of the prejudice flowing to her that is relied upon by the accused to argue that her trial will be unfair. She submits that she has lost the chance to cross-examine Camelo and adduce evidence potentially favourable to her case through him.
That gives rise to an initial observation that it is by no means certain that the accused would have the opportunity to cross-examine Carlos Camelo, even were he available as a witness. On the Crown case, Camelo may well have been a person criminally involved in Mrs Jones' murder. Further, there is a quantity of evidence that would provide a sound foundation for the Crown to conclude that Camelo was an unreliable witness who was untrustworthy or incapable of belief. It would be open to the Crown not to call Camelo in its case, at least after speaking to him in conference to assess his reliability: The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38 at 575; Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 at 674-675; R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 at [51]. Whilst the Crown would still be obliged to make Camelo available to the accused, it would in that event have been for her to call him as her witness, and she would lose the benefit of cross-examination.
Also relevant to the opportunity to the accused to cross-examine Camelo are the suspicions that attach to him. It is tolerably clear on the evidence that Camelo was viewed by the police officers conducting the investigation at an early stage as a joint suspect with the accused. His interview of 29 November 2001 was conducted under caution and it is plain in that interview, and by contrast with his earlier witness interview, that Camelo lied to police about his movements on the evening of 2 November 2001. It is also clear from the accounts given by Nicholas Soucoff that Camelo asked at least Soucoff, and probably Hardy, to lie to police about his whereabouts. The alibi that Soucoff initially gave to Camelo was shown to be illusory and, on the evidence available to be placed before any jury, Camelo's whereabouts cannot be established for the time of the murder.
That Camelo lied and asked at least one other person to lie for him, something that the Crown does not take issue with, will be a fact before any jury.
This evidence will fall to be assessed in the context of other evidence to be adduced in the Crown case that is capable of placing Camelo within a very short distance of the deceased's Lansvale home - as close as around the corner from it - at the time of the murder, with no reasonable explanation or justification for his presence there.
It would be open to the accused to rely upon the lies told by Camelo to police as to his whereabouts, going to consciousness of guilt; his attempts to suborn perjury from at least Nicholas Soucoff on that subject; the credible evidence that places Camelo in the vicinity of Huntingdale Avenue Lansvale at the material time; and the observations of witnesses as to Camelo's aggressive demands for money from Mrs Jones before her death, to submit to the jury that Carlos Camelo is the true offender.
Favourably to the accused, Camelo will not be present to reject that claim or suggestion on his oath, or to advance an innocent account of his movements, or explanation for his lies. Whilst it is at least theoretically possible that, by cross-examination, were that open to the accused, her counsel might extract a confession to the murder from Camelo in evidence, that prospect must be highly unlikely.
The absence of Cesar Camelo or evidence as to his life with the accused in 2003 is not in my conclusion a greatly significant feature to weigh in the balance, since Cesar can say nothing about the matter advanced by the Crown as a circumstance relevant to proof of the accused's guilt, being that she was involved in an intimate relationship with Carlos Camelo preceding and at the time of the murder of Mrs Jones. The Crown points to that relationship to argue that the accused was in thrall to Carlos Camelo in 2001 and wanted access to her mother's assets to support and benefit Camelo. Even were Cesar to be available to give evidence of the genuineness of his relationship with the accused in 2003, that would not negate the evidence of the accused's relationship with Carlos Camelo in 2001. Nor could evidence from those who were in contact with the accused and Cesar during their period of co-habitation, of whatever duration that may have been, provide useful evidence relevant to the relationship between the accused and Carlos in 2001.
The loss of other evidence, such as testimony from Mrs Young and Ms Lim, some of it the result of what the accused contends to have been inadequacies in obtaining statements from witnesses, is capable of being addressed at trial, as was observed in Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65, at [264]: "The significance of the inadequacies complained of with hindsight is a matter which will be capable of evaluation by a properly instructed jury having regard to the evidence as a whole and keeping in mind the onus and burden of proof which the Crown bears. It will also be open to the trial judge to give a forensic disadvantage direction appropriate to the facts of the case."
Similarly, whilst the fading of memories of witnesses may or will disadvantage the accused, there are a range of measures available to the Court to protect against any consequential unfairness. Although it is sensible to consider the measures that may be required in the context of evidence as it is ultimately given before the jury, there are both directions and statutory measures that the Court can adopt to ameliorate any unfairness.
It will be open to the Court to permit hearsay evidence to be called in accordance with Part 3.2 of Chapter 3 of the Evidence Act to ensure that any jury has access to relevant evidence that might otherwise be lost to the accused because of the passage of time.
Section 165B of the Evidence Act provides for a jury to be warned about the disadvantage that the accused has suffered through delay, and it is highly probable such a warning will be required. Its terms would depend on the evidence before the jury.
Where there is a basis to conclude that evidence has been tainted, either by a witness at the inquest having heard the evidence of other witnesses in 2007 or in some other way, the Court can warn the jury about that possibility, and caution its members about their approach to affected evidence. A specific direction or directions can be crafted to address the particular circumstances, or a direction can be given in accordance with s 165 of the Evidence Act.
A warning under s 165 of the Evidence Act is available in relation to any hearsay evidence that the Crown may be permitted to adduce.
In short, there are ways in which the Court can address any forensic disadvantage to the accused caused by delay, to prevent unfairness of such magnitude that she cannot receive a fair trial. Whilst the features the accused has identified must have some impact upon the accused's trial, and upon her capacity to test the case against her, as was observed by the Chief Justice in Decision Restricted [2021] NSWCCA 117, at [6]: "[…] it must be remembered that a fair trial is not necessarily a perfect trial. As was pointed out by the plurality in R v Edwards [2009] HCA 20; (2009) 255 ALR 399 at [31], it happens on occasion that relevant material is not available, documents, recordings and other things may be lost or destroyed, and witnesses may die. The plurality pointed out that "[t]he fact that the tribunal of fact is called upon to determine issues of fact upon less than all the material which could relevantly bear upon the matter does not make the trial unfair" (R v Edwards at [31])."
The very rare circumstances in which the continuation of a criminal prosecution will amount to an abuse of the court's processes have seldom included delay alone because there is, as Mason CJ made clear in Jago at 34: "[…] no right to a speedy trial or trial within a reasonable time independent of the right to be protected from unfairness resulting from undue delay."
For that reason, an accused seeking a permanent stay based on delay must be "able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute": Clarkson v R [1987] VR 962 at 973. That is a heavy burden, and one that I do not regard the accused as having discharged.
The issue of delay does not, however, apply in isolation.

Was the Delay Unreasonable?

The accused contends that the delay in her case was unreasonable because, insofar as it is explained at all, it is attributable in large part to the disinterestedness of the State in actively investigating the case for periods of many years at a time. Further, it is argued that the case which the Crown intends to take to trial is not materially different to that which existed in 2002 or 2003, when the accused could have been charged.
The accused relies upon the overall chronology of the police investigation to suggest that it was open to investigating police to have charged her with her mother's murder in 2002. Instead, the investigation was left to limp slowly on, before a delayed inquest in 2007 that further prejudiced her, and additional investigative work undertaken from about 2017 leading to a charge being brought against her in 2019. She contends that, despite the ongoing inquiries, the Crown case is little different in 2019 and 2022 from the police case in 2001 or 2002, and the unreasonableness of police inactivity is compounded by that feature.
In raising the unreasonableness of the delay, the accused does not point to any malfeasance or other failing on the part of the police. It is inactivity and disinterestedness that is relied upon, in tandem with the generally unchanged nature in the evidence against the accused.
In assessing that claim it is reasonable to bear two considerations in mind. Firstly, the question of the sufficiency of evidence can be a matter about which minds can reasonably differ. There is not always a necessarily correct answer to that question, and no rigid formula by which to find the answer. Secondly, the resources at the disposal of police in the investigation of crime are not infinite, and there are frequently competing priorities for the use of those resources.
It is at least inferentially clear that, whilst DSC Walton believed that the accused had murdered her mother, he did not consider that the evidence assembled against her as at 2002 and 2003 was sufficient to charge her with murder. Given that he was liaising with Coronial Advocates and the Coroner's Office in 2003 and sporadically until 2005, it is reasonable to conclude that his opinion was confirmed by those persons connected with the coronial proceedings whom he consulted.
I cannot find on the evidence before this Court that the officer's conclusion in that regard was anything other than reasonable, albeit that it may be assessed by some as a cautious approach. If DSC Walton genuinely reached the conclusion that there was not a reasonable prospect of securing the accused's conviction for her mother's murder or an available alternative offence, it would have been improper for him to proceed with a criminal charge. I am satisfied on the evidence that the officer formed the opinion that there was insufficient evidence to justify the commencement of criminal proceedings. That is not an unreasonable opinion to have reached in the period 2001 - 2005.
That DSC Walton's opinion was not unreasonable is supported by the conclusions of the Deputy State Coroner in November 2007. His Honour did not, having considered all available evidence, conclude that the evidence could satisfy a jury beyond reasonable doubt that a known person - the accused - had committed an indictable offence, being the murder of her mother.
Thereafter the matter was referred to the UHTeam for review and that process was carried out albeit at what, at first blush, appears to be a slow pace. However, as DSC Clark observed in her oral evidence, the speed of the inquiries conducted by the UHTeam must be assessed in the context of the resources available to police to review and re-investigate the matter. Police resources are not endless and, as DSC Clark noted, the UHTeam had as many as 700 cases on hand at any given time. The review and reinvestigation had to be conducted in that context. When regard is had to the voluminous holdings of the NSW Police relevant to the investigation it was clearly a painstaking process that would have taken a great deal of time.
There is evidence that the work was interrupted for a period of years whilst the unsolved Family Court bombings case was reviewed and reinvestigated. It is a matter of public record that that case involved multiple homicides in the course of the commission of very serious crimes directed at undermining the administration of justice: R v Warwick (No. 93) [2020] NSWSC 926; R v Warwick (No. 94) [2020] NSWSC 1168. It is not possible for this Court to review or critique the allocation by police of resources to individual cases but, as unappetising as the process of ranking the seriousness of murders one as against another is, it is difficult to conclude other than that the Warwick case was a grievously serious matter deserving of thorough and prompt police attention.
As with a trial, the operation of the criminal justice system, including as it does the investigative phase, may be less than perfect but still not be unfair to an accused. In an ideal world every serious crime would be given the same speedy and immediate investigation that could be provided by unlimited police and forensic resources. That is not, however, the real world.
Bearing in mind the limitations on resources that effect all criminal investigations, I cannot conclude that the conduct of the police in investigating the murder of Mrs Jones was unreasonable in the sense of giving rise to irremediable prejudice or unfairness. There was nothing improper or incompetent about the police inquiry. It was not conducted with a view to harassing or harming the accused. DSC Walton took a view of the strength of the case against the accused that was reasonably open, even if another officer considering the same evidence might have reasonably reached a different conclusion.
That DSC Clark reached a different conclusion about the strength of the evidence against the accused follows from her decision to charge the accused in September 2019. The accused argues that the officer's decision was taken in the absence of any significant difference in the evidence between 2019 and 2002 or 2003, contributing to the unreasonableness of the delay. The Crown concedes that there is no single piece of compelling new evidence, and no "smoking gun".
Whilst the Crown's concession is one that was properly made in my opinion, that does not mean that there is no material difference in the case against the accused as it was close in time to Mrs Jones' murder and the case as it is now. There is some further forensic evidence that might bolster the Crown case in the evidence of DS Southall and, whilst the accused intends to call an expert whose evidence may cast doubt upon the reliability of DS Southall's opinions, that is an assessment for a jury to make. It cannot be said at this stage that DS Southall's evidence is immaterial or unreliable, and it could not have been said by DSC Clark when she assessed the evidence against the accused.
That is particularly so in that one of the bases the accused relies upon to impugn DS Southall's evidence is not supported by the evidence. The accused submitted that there is no evidence that the accused's assailant grasped her t-shirt (thus potentially leaving blood transfer stains on the collar or rear of it) as opposed to her wet hair, where blood transfer stains would not have been found even had they existed. On the Court's review of the accused's accounts of the attack upon her, set out above, she gives a clear account of having been grabbed or pulled by her t-shirt. She did not mention the assailant taking hold of her hair, and the two strands of what is likely to be the accused's hair recovered from the rear of the t-shirt do not support a conclusion that the assailant pulled her by her hair. The significance of that evidence, if any, will be for a jury to assess, but it does constitute additional evidence.
There is evidence of variations in the accused's accounts of events of 2 November 2001 given over time that a jury may regard as significant, such as whether the accused was able to move her fingers under the ligature held to her throat by the assailant, or whether she saw her mother before she fled the home. That evidence can be regarded as adding something to the Crown case; how much it adds will be a matter for a jury.
There are evidentiary differences in the case as it was in 2003 and the case as it was in 2019 and is presently. The additional evidence adds further strands of circumstantial evidence upon which the Crown can rely and adds some strength to the case against the accused.
Having considered the accused's submissions, I am not persuaded that consideration of the state of the evidence in 2003 and 2019 points to unreasonableness in the delayed decision to charge the accused, or that the length of time taken to investigate the matter is attributable to disinterestedness.
The delay in this matter is unfortunate, but not unreasonable in my conclusion.

Are the Proceedings Oppressive?

The accused relies upon the evidence of her fears at an early stage that she would be charged, her concerns and distress about her children in 2007, her separation from her children when she was arrested in 2019, and her statements to DSC Clarke in her 2019 interview about the unfair conduct of the police investigation, to argue that when taken with the delay generally and the specific delay in and conduct of the inquest the proceedings against her are oppressive and vexatious.
A complaint of this nature can of itself, or in combination with other features, amount to an abuse of process. In Tony Strickland (A Pseudonym) & Ors v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 Edelman J referred to three categories of cases where a stay might be granted, at [256]: "The power to prevent an abuse of process is an inherent common law power of a superior court of law; it is a power that does not derive from statute but is intrinsic to the nature and structure of the court itself. The power to stay proceedings to prevent an abuse of process has been conveniently divided into three main categories. In a passage quoted with approval on a number of occasions, McHugh J said that the three categories are: (i) the court's procedures are invoked for an illegitimate purpose; (ii) the use of the court's procedures is unjustifiably oppressive to one of the parties; and (iii) the use of the court's procedures would bring the administration of justice into disrepute" (footnotes omitted)."
This aspect of the accused's case falls within the second of the categories referred to. Of that category of case and the interdependent nature of the wider categories, Edelman J went on to say, at [258]: "The three categories described by McHugh J are not independent. If the use of the court's procedures is unjustifiably oppressive to one of the parties (category (ii)), imperilling the fairness of a trial, this can contribute to the conclusion that the administration of justice would be brought into disrepute. There may even be circumstances where oppression of one of the parties is sufficient to bring the administration of justice into disrepute, even if the trial would be fair. Further, the underlying rationale of category (iii), namely, protection of the integrity of the court and its processes, might also encompass category (i) where a trial is instituted or maintained with an immediate, predominant purpose that is improper. Therefore, at a higher level of generality, it may be that the three categories are really only two, which overlap: (i) cases where a defendant cannot receive a fair trial; and (ii) cases where a trial would bring the administration of justice into disrepute" (footnotes omitted).
However described, the accused argues that the proceedings against her are unjustifiably oppressive, and this feature with the other matters raised are such as to bring the administration of justice into disrepute.
I accept that the accused has been greatly disturbed by the police investigation and the criminal charge brought against her. Ordinary experience would suggest that it would be an extremely distressing thing to be the focus of the suspicions of police officers investigating a murder, much more so when the murder was of a close family member. Ordinary experience also suggests that it would be distressing and humiliating to have those suspicions made public, not least at a coronial hearing, where the coroner at least implied that the accused was responsible for her mother's murder.
On the evidence, the accused believed in 2007 that she was likely to be arrested and she found herself in the awful position of trying to arrange suitable care for her children in that eventuality. Imagination is not required to understand how terrible it would be for a young mother to be in that position, contemplating the loss of her children, the children going into care, and she herself losing her freedom.
When the coronial hearing passed without that occurring, the accused might have felt relief, but did not. As she told DSC Clarke in her 2019 interview (at Q&A119) she was "aware it remained under investigation". Thus, the anxiety may have receded, but it did not fully abate.
All those things have contributed to years of what I accept would be unsettling anxiety and distress.
However, for the most part these are matters that can be regarded as an inevitable if regrettable part of the operation of the criminal justice system. They are not matters that can amount to oppression necessarily militating in favour of a permanent stay of proceedings. Perhaps setting aside habitues of the criminal courts and prison system, any person facing criminal charges is likely to be made highly anxious by the prospect, the level of anxiety being magnified commensurate with the seriousness of the charge. Any person facing a refusal of bail after charge is likely to be highly distressed by that prospect and the impact of entering custody on family members, particularly children. That impact of the process of criminal investigation and charge is almost universal and cannot establish oppression.
Those caught up in the operation of the criminal justice system, whether as an accused person, victim of crime, or witness to serious crime, must experience it as a highly stressful, even traumatic, environment. The system does not always operate smoothly and where very serious crime is involved, it does not always operate speedily. There can be many frustrating and distressing years for those awaiting its frequently slow and grinding progression to a resolution.
An example, for both accused and any complainant or witness, is the experience of a trial - itself occurring at the end of a long process involving investigation, charge, committal, and pre-trial management - which ends with the discharge of the jury without verdict, and a subsequent retrial; or the jury verdict that is appealed, resulting in the quashing of a conviction and a retrial. Those events would be potentially personally devastating to the participants, but that is to be distinguished from the sort of oppression and vexation leading to a permanent stay of proceedings. As much as the procedure can cause great anguish to those involved, in my opinion it does not amount to vexation or oppression of the accused person who is required to endure it.
The sort of circumstances that more typically result in a conclusion that a prosecution is unjustifiably oppressive to the accused are those that involve some serious irregularity on the part of the authorities, such that to continue with a prosecution would bring the administration of justice into disrepute. In Strickland for example, the appellants had been subjected to unlawful conduct and their right to silence abrogated by the conduct of the authorities. The prosecution relied upon illegally obtained evidence to conduct its case. The prosecution was found to be an abuse of process. In Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 there was unlawful conduct by the investigating authority that gave rise to the offences into which the appellant was entrapped, and a stay was granted.
Of course, the categories of conduct or processes that will amount to vexation or oppression are not closed, and there have been instances where an accused person who faced an extreme example of the burden of the process was granted a permanent stay. See R v Nicholson (1998) 102 A Crim R 459 for example, where an accused person facing drugs charges was granted a stay because, over a five-year period, his trial had been listed but marked as not reached on five separate occasions. Both the accused and Crown had been ready to proceed on each of the five trial dates.
In the absence of some malice or impropriety the circumstances must be truly extreme to justify the truly extreme step of granting a permanent stay of proceedings. This is not such a case in my view.
Whilst the accused has no doubt been seriously distressed by the investigative process, she has not been subjected to impropriety or illegality. The investigation into her mother's murder was not incompetent or unreasonable. Although there has been very lengthy delay, the accused enjoyed her freedom throughout and there have been many years in which events connected with her mother's death must have receded into the background.
The Court cannot find that the burden of facing a police investigation and criminal prosecution that the accused has endured has moved beyond the ordinary and been rendered extraordinary by delay and its consequences, even coupled with the anxiety of being a suspect and accused person over a lengthy period.
Those matters relied upon by the accused, which do not include malice or impropriety or even incompetence, do not of themselves amount to proceedings that can be regarded as vexatious and burdensome in the sense where the criminal justice system itself operates as an instrument of state oppression.
I accept that for the accused, the chronology of the investigation and criminal prosecution has exacerbated the distress. That is a feature to be weighed in the balance, with the other matters she relies upon.

Conclusion

A review of the authorities relevant to an application for a permanent stay shows that such applications succeed very rarely. That is even more so where the proceedings the applicant seeks to permanently stay relate to a criminal charge of murder. No doubt that is because of the importance of the public interest in seeing persons accused of a serious crime placed before a court where the question of responsibility for the crime can be determined in a public forum.
The question of whether criminal proceedings should be permanently stayed as an abuse of the court's process is to be determined by balancing competing considerations that all have some bearing on the public interest in the operation of the criminal justice system: Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 at 256. There is a strong public interest in the fair and just operation of the criminal justice system; there is a strong public interest in seeing persons charged with serious crimes brought to trial. Failure to protect either interest risks forfeiting public confidence. The matters raised by the accused fall to be weighed in the balance. "Fundamental amongst the considerations to be weighed in determining whether criminal proceedings should be permanently stayed as an abuse of process is "the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime". That is because a permanent stay order has the practical effect of providing immunity from prosecution to a criminal defendant, leaving that criminal defendant under an "irremovable cloud of suspicion" and leaving the potential if not the likelihood of engendering within the community "a festering sense of injustice", if not cynicism": Strickland, at [167] per Gageler J (footnotes omitted).
Although I do not find that the accused's trial will be anything other than fair, I accept that the accused has been and will be disadvantaged by the process that has unfolded over two decades, and I accept that she has been greatly distressed by it. I have weighed those considerations against those that require accused persons to be brought to trial. The significant public interest in the determination of a criminal charge of murder against the accused is the public interest that must prevail, in my opinion.
I do not accept that the combined effect of the matters the accused has raised in support of her application for a permanent stay are such as to establish that the continuation of the prosecution would compromise the administration of criminal justice and constitute an abuse of the processes of the Court. That is a very high bar for an applicant to meet; the accused has not met it in this instance.

orders

The orders of the Court are: 1. The Notice of Motion filed on 20 December 2021 seeking a permanent stay of the accused's trial is dismissed.

Endnotes

Messenger ribonucleic acid
A short tandem on the Y-Chromosome DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2022

Coroners Act 1980(NSW)

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