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[2025] NSWSC 1238
General information, not legal advice.
Supreme Court of NSW
2025-11-07
Yehia J
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Medium Neutral Citation: R v Forrest (No 3) [2025] NSWSC 1238
Hearing dates: 1-2 October 2025
Date of orders: 2 October 2025
Decision date: 07 November 2025
Jurisdiction: Common Law
Before: Yehia J
Decision: (1) The representations made by Mr Christopher Gillespie to James Gillespie, Suanne Peacey, and Wade Patterson are admissible pursuant to s 65 of the Evidence Act 1995 (NSW). (2) The representations made by Mr Christopher Gillespie to the police in his induced statement and the walkthrough dated 25 October 2023 are not admissible pursuant to s 65 of the Evidence Act 1995 (NSW).
Catchwords: CRIMINAL LAW – trial – pre-trial issues – ruling on admissibility of hearsay statements
EVIDENCE – hearsay – first-hand hearsay exceptions – s 65(2) of the Evidence Act 1995 (NSW) – maker unavailable – whether the representation was made shortly after the asserted fact – meaning of “shortly after” – whether the representation was made in circumstances that make it highly probable that the representation is reliable – where maker of the representation criminally concerned in the events that gave rise to the proceedings
Legislation Cited: Crimes Act 1900 (NSW), s 18(1)(a)
Evidence Act 1995 (NSW), ss 59, 65(2)(b), 65(2)(c), 66A, 67
Cases Cited: R v Singh (No 4) [2021] NSWSC 75
Harris v R (2005) 158 A Crim R 454; [2005] NSWCCA 432
R v Tarantino [2019] NSWSC 939
R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
Williams v The Queen (2000) 119 A Crim R 490; [2000] FCA 1868
Category: Procedural rulings
Parties: Rex (Crown)
Eric Forrest (Accused)
Representation: Counsel:
E Blizard (Crown)
J S Hopper (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
George Sten & Co Criminal Lawyers (Accused)
File Number(s): 2023/00350546
Publication restriction: Nil
The Crown case is that the deceased was last seen alive on 25 September 2023 at a rural property, Burrunah, in Menah. The property is about 15 minutes’ drive from Mudgee. Ellerslie is an adjoining agricultural property but both properties make up one farm, about 800 hectares, used primarily for livestock production of sheep and cattle.
As at September 2023, Christopher Gillespie (also known as “Diz” or “Dizzy” or “Des”), had been the manager of both properties for about 30 years. He lived in a three-bedroom house on Burrunah, about 300 m from the main homestead which was occupied by Catherine Cox, the owner of the farm.
As at September 2023, the accused and Mr Gillespie had known each other for several years. Although the accused had never formally worked on the farm, he did stay there occasionally since at least 2018-2019.
Also living on Ellerslie were Wade Patterson and his partner, Suanne Peacey. Wade Patterson was a farmhand at the relevant time.
The deceased and the accused knew one another prior to 25 September 2023.
On 24 September 2023, the deceased, his partner (Lesley Plasto) and an associate (Scott Walters) travelled to Mudgee from Sydney in a car borrowed from a friend. On the morning of 24 September 2023, the group arrived at Mr Gillespie’s home. Their movements thereafter are of little relevance to the issues in this pre-trial application.
Around 7pm on 24 September 2023, an unknown person lit a grass fire on an area known as School Hill at Ellerslie. The initial lighting of this fire was unrelated to the allegation. Multiple people notified the New South Wales Rural Fire Service (RFS). The RFS was able to contain the grass fire but the main tree was not extinguished on the night of 24 September 2023.
At about 7am on 25 September 2023, Catherine Cox attended School Hill. At that time the main tree was still smouldering. At 10am, two members of the RFS attended School Hill. They observed that the main tree was still burning and extinguished it with water. At around 1:30-2pm, RFS attended the fire and did not observe any burning or smoke emitting from the main tree stump. No further action was required.
The Crown case is that the accused travelled from the Central Coast to Dubbo in a white hatchback hire car. He picked up Jesse McMillan-Davies and Alison Mudford in Dubbo and gave them both a lift to Mudgee. They arrived at Burrunah after dark on 25 September 2023.
At some stage on the afternoon of 25 September 2023, Lesley Plasto and Scott Walters left the farm and travelled back to Sydney. The deceased remained at Burrunah. By the time the accused and his group had arrived at Burrunah, Lesley Plasto and Scott Walters had already departed.
Sometime after 9:12pm on 25 September 2023, the deceased, Mr Gillespie and Mr McMillan-Davies drove to the site of the School Hill fire on Ellerslie. After a couple of minutes, the accused arrived in his vehicle. Mr Gillespie and Mr McMillan-Davies were eyewitnesses to what happened next.
As the accused approached, Mr McMillan-Davies noticed that he was holding his arm down like he was hiding something. When the accused raised his arm, Mr McMillan-Davies observed that the accused was holding a sawn-off double-barrel shotgun.
The accused said, “you wanna treat me like a gronk”. The deceased put his hands in the air and pleaded with the accused. The accused pulled the trigger and the first bullet hit the deceased near his neck or shoulder area. The force of the shot knocked the deceased off his feet. While the deceased was on the ground, the accused ran back to the car and rummaged around in the back. On the Crown case, the accused was reloading.
The accused ran back towards the main tree, after the deceased. The deceased was still pleading with the accused. The accused fired at least two more shots at the deceased and the deceased immediately fell to the ground.
The accused ran back down the hill, placed the firearm in the car and drove off in the direction of Mudgee. Mr McMillan-Davies walked up the hill to where the deceased was lying face-down near the main tree. He nudged the deceased’s body with his foot and saw that the deceased was dead.
In the hours after the alleged murder, Mr Gillespie and Mr McMillan-Davies were in the house at Burrunah. At some stage, the accused returned, still holding the firearm.
In the early hours of 26 September 2023, Mr McMillan-Davies assisted the accused to move the deceased’s body. The Crown case is that Mr McMillan-Davies and/or Mr Gillespie assisted the accused in disposing of the body by burning it in the tree stump at School Hill.
At trial, the Crown seeks to adduce evidence of representations made by Mr Christopher Gillespie to civilian witnesses James Gillespie, Suanne Peacey and Wade Patterson, and in an interview with police on 25 October 2023.
As set out above, the Crown case is that Mr Gillespie was one of two eyewitnesses to the murder. The Crown alleges that Mr Gillespie placed the deceased’s remains inside the tree trunk within a day, or days, of the alleged murder. The Crown also seeks to adduce evidence of three intercepted telephone calls from Mr Gillespie’s phone to contextualise his interview with police, if portions of Mr Gillespie’s police interview are ruled admissible.
Mr Gillespie died an accidental death in April 2024. The Crown makes an application pursuant to s 65 of the Evidence Act 1995 (NSW) to adduce the representations of Mr Gillespie.
The Crown contends that the representations made to James Gillespie are capable of satisfying the requirement of “shortly after” in s 65(2)(b) of the Evidence Act and relies on s 65(2)(c) in the alternative. The Crown relies on s 65(2)(c) in respect of the representations to Suanne Peacey, Wade Patterson and the police. Section 66A is also relied upon for admission of discrete portions of the police interview and the three intercepted calls.
The Crown provided notice of Mr Gillespie’s death to defence counsel on 30 July 2025 pursuant to s 67 of the Evidence Act. No issue is taken with the notice.
59 The hearsay rule—exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
…
65 Exception: criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
(a) was made under a duty to make that representation or to make representations of that kind, or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) was made in circumstances that make it highly probable that the representation is reliable, or
(d) was—
(i) against the interests of the person who made it at the time it was made, and
(ii) made in circumstances that make it likely that the representation is reliable.
…
“[25] The Crown relies on either s 65(2)(b) and/or (c) in relation to the hearsay representations. The Crown must therefore show, in relation to each representation, either that the circumstances were such that it is unlikely that the representation was a fabrication (if the representation was made when or shortly after the asserted fact occurred – subs (b)), or that the representation was made in circumstances that make it highly probable that the representation is reliable (subs (c)).
[26] The High Court (French CJ, Bell, Gageler, Keane and Gordon JJ) considered the application of s 65(2) in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 (“Sio”). That case concerned s 65(2)(d) of the Evidence Act but the principles are the same. The proper approach to apply s 65(2) is as follows:
‘[57] It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65.
[58] It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act.’
[emphasis added]
[27] The High Court went on in Sio v The Queen to observe at [69]-[70]:
‘The provision seeks to focus attention upon the circumstances of the making of the representation to determine the likelihood of its reliability, but that:
“evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby.” [R v Ambrosoli (2002) 55 NSWLR 603 at 615; [2002] NSWCCA 386]
That observation may be accepted. The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted.’ (footnotes omitted) [emphasis added]
[28] Thus, the focus is not on whether the representations themselves are likely to be reliable but on the circumstances in which they were made. Objective circumstances that may preclude a finding of likely reliability include “a specific retraction of the assertion of the relevant fact” or “[s]statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous” (Sio at [71]). In assessing the circumstances in which the representation was made, the Court is not to undertake a general assessment of whether the representor is a reliable witness: Sio at [72].”
Section 65(2)(b) applies if the representation was made “when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication”.
In Harris v R (2005) 158 A Crim R 454; [2005] NSWCCA 432 (“Harris”), the Court (Studdert J, Grove and Whealy JJ agreeing) considered s 65(2)(b) as follows:
“[32] Section 65(2)(b) imposes time restraints on the admissibility of evidence. Those restraints are expressed alternatively. The representation under consideration is to be made when the asserted fact occurred, or it is to be made “shortly after” that occurred.
[33] There has been no attempt in the statute itself or in the cases to which the Court was taken to define what is meant by “shortly after”. In Conway v The Queen (2000) 98 FCR 204, the introduction of the words “shortly after” was seen as a significant departure from the position prior to the introduction of the Act. In their joint judgment, Miles, von Doussa and Weinberg JJ said (at p 239-241 [123], [133])
‘[123] The word ‘when’ in s 65(2)(b) of the Act encompasses this notion of strict contemporaneity. The introduction of the expression ‘shortly after’ is, however, a significant departure from traditional doctrine…
[133] The primary objective which underlies the requirement in s 65(2)(b) of the Act that the representation be made ‘when’ or ‘shortly after’ the asserted fact occurred seems to be to ensure that the matters conveyed are either strictly contemporaneous or, if narrative of a past event, still fresh in the mind of the person recounting that narrative. The expression ‘shortly after’ makes it clear that there need not be anything like the strict contemporaneity required at common law to render the evidence admissible as res gestae.’
[34] In R v Mankotia (unreported, 27 July 1998) Sperling J considered the expression:
‘The phrase ‘shortly after’ is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to be taken into account but - as in the, case of normative judgments generally - it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase ‘shortly after’ must be the actual time that has elapsed and whether that fits the ordinary usage of the expression ‘shortly after’ in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind.’
[35] Levine J cited the above observation in R v Polkinghorne (1999) 108 A Crim R 189, and the approach of Sperling J and Levine J was considered to be correct in Conway ((supra) at 241 [135]).
[36] In Williams v The Queen (2000) 119 A Crim R 490 s 65(2)(b) was again addressed. After considering the cases to which I have referred above, Whitlam, Madgwick and Weinberg JJ said (at 502 [47]-[48]):
‘[47] Thus, it is principally a concern to exclude concocted evidence that informs the meaning of the phrase ‘shortly after’. As noted by Sperling J in Mankotia, at [10], s 65(2)(b) ought not be regarded as simply importing a test of:
“... reliability at large. It is a narrower test ... [I]t is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial.”
[48] For these reasons, it would be a mistake, in determining whether a statement has been made ‘shortly after’, to over-emphasise such matters as whether the events in question were ‘fresh’ in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact…’
[37] In referring to “proximate pressure” in the above passage, plainly their Honours had in mind again the question of temporal restraint. In Williams their Honours considered the lapse of five days took the representations “outside the likely temporal realm of statements that may be considered to be reliable because made spontaneously during, or under the proximal pressure of events” (at 502 [49]).
…
[39] … No attempt has been made in the decided cases to prescribe the words “shortly after” by the passing of any defined period of time. Each case has to be considered having regard to its own particular circumstances. …”.
“[25] In Regina v Mankotia [1998] NSWSC 295 (“Mankotia”), Sperling J observed that the quote “shortly after” requires a “normative judgment … to be made dependent on the circumstances of the case”. In Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490 (“Williams”), the Full Court of the Federal Court observed (at [48]):
‘The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact. In Conway [Conway v R (2000) 172 ALR 185; [2000] FCA 461] the statement in question was made by a murder victim who said, while observed to be looking ‘terrible’, that she had been drugged and had been ‘off her face for about three or four hours’. The comments of the Court in Conway regarding the meaning of ‘shortly after’ should be understood accordingly.’
[26] Consistent with the emphasis upon a statement being made under the proximate pressure of the occurrence of the asserted fact, typically passages of time of seconds or hours have been held to satisfy the test of “shortly after” (see, for example, R v Ian Dacey; R v Lee Dacey [2013] NSWSC 1875 at [19] (“Dacey”) and R v Afu; R v Caleo (No 15) [2018] NSWSC 245 at [24]). However, periods of many days and months generally have not (see R v Maglovski [2012] NSWSC 1378 at [13], concerning a period of three months; Williams at [49], concerning a period of five days).
[27] It seems that periods of time longer than a day but shorter than a number of days are the most problematic. In Dacey at [50], Button J held that a 30-hour lapse was not sufficient to make the representation “shortly after” the asserted fact. I made a finding to the same effect in R v Bryce (No 1) [2014] NSWSC 495 at [25] to [32] (“Bryce”). However, in R v Toki (No 3) [2000] NSWSC 999 at [92] (“Toki”), Howie J held that a delay of one day between the asserted fact and the making of a representation nevertheless meant that the representation was made shortly after the asserted fact.”
Both sub-ss 65(2)(b) and (c) refer to the “circumstances” in which a representation was made.
In Harris, the Court considered the circumstances within which the representations were made, finding that the circumstances made it unlikely that the representations were fabricated:
“[41] In R v Ambrosoli (2002) 55 NSWLR 603 it was determined that the circumstances upon which s 65(2)2(b) and (c) focussed were the circumstances of the making of the previous representation. Mason P, with whom Hulme and Simpson JJ agreed, said this at [34]:
‘It would therefore appear that R v Mankotia, Conway and R v Williams are at one in:
• focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable; and
• excluding evidence tending only to prove the asserted fact.
[35] In my view this is a correct approach to s 65(2)…’
[42] In this case, of course, there were no prior or later statements made by the deceased that might have had any bearing upon the reliability of the circumstances of the making of the statement admitted into evidence.
…
[44] [The circumstances relied on by the Crown were]:
(i) the level of intoxication was mild according to the ambulance officer, Christopher Roach, who attended upon the deceased at the club immediately after the attack. Ambulance Officer Roach’s assessment was that the deceased was “still quite aware of his faculties”; (ii) the deceased’s version was not inherently unlikely; (iii) the statement given to the police officer was a formal statement which commenced in the usual way:
“This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness.
The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable for prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.”
(iv) in making his statement, the deceased would have appreciated that there were witnesses in the club that the police would interview concerning what had occurred; (v) the statement was made after the deceased had had some treatment at the hospital but before the CAT scan and hence before he was in a position to appreciate the nature and extent of his injuries.”
“[43] Summarising the above decisions, circumstances which have been held to have favoured reliability include:
(1) If the representations are made in a statement to police acknowledging potential criminal liability for false statements;
(2) Representations made to an investigating authority (e.g. NSWCC) in the knowledge they will be checked for truthfulness;
(3) When an employee who has no personal interest in the subject matter or outcome gives evidence about a work practice;
(4) When representations are made to a social worker in the course of seeking assistance, the representor having unsuccessfully earlier sought help from police.
[44] On the other hand, circumstances which have not favoured reliability include:
(1) Representations made to siblings about a relationship;
(2) When representations are a recanting of evidence given on oath and the representor is not at risk of prosecution for false statements;
(3) Where the representor has a motive for fabrication, for example because they are being investigated for a serious offence; and
(4) If the evidence is directly contradicted by other statements made by the representor.
[45] Further, corroborating evidence from another witness is not relevant to the circumstances in which the representation was made.”
The Crown case is that sometime prior to 1 October 2023, Mr Gillespie told his son, James Gillespie, what he had observed. James Gillespie made a statement to police on 3 November 2023 which included a conversation he had with his father. In his statement, James Gillespie stated that the disclosure by Mr Gillespie occurred prior to the commencement of daylight savings (which took effect from 1 October 2023).
The Crown alleges that Mr Gillespie made the following representations to his son in the course of a single conversation:
(a) Mr Gillespie asked James Gillespie if he remembered “that Dave fella or something like that” (and then described him); (b) That the accused had shot him; (c) That the accused had chased him and shot him another couple of times; (d) That the accused had used a shotgun; (e) That it had happened at School Hill; and (f) That Mr Gillespie had lifted the body up with a tractor and put him on a big fire.
The Crown submits that the representations made to James Gillespie (less than a week after the alleged murder) are capable of satisfying the requirement of “shortly after” in s 65(2)(b). In the alternative, the Crown relies on s 65(2)(c).
The Crown contends that the following circumstances make it unlikely that the representations are a fabrication (s 65(2)(b)), or in the alternative, highly probable that they are reliable (s 65(2)(c)):
(a) Mr Gillespie and the accused were friends prior to the shooting. The Crown submits that this is relevant in considering whether Mr Gillespie would fabricate a serious allegation against the accused. (b) The representation was to an immediate family member. (c) The representation was made in the presence of Mr McMillan-Davies (who on the Crown case was also present at the time of the shooting). The Crown submits that it is highly unlikely that Mr Gillespie would fabricate an account in front of the only other person who witnessed the event and could contradict him. (d) The representations commenced spontaneously, as opposed to in response to questioning about the whereabouts of the deceased. (e) At the time of the representations, Mr Gillespie had no motive for fabrication. The representations were made prior to the commencement of the police investigation and before police spoke to Mr Gillespie. (f) The details of the representations are memorable and of a nature that the listener would likely be able to recall the terms of what was said when he made his statement a month later.
I note that Mr Gillespie disclosed to his son that he had been involved in the disposal of the deceased’s remains. He did not include this in his statement to police weeks later.
The accused contends that the representations were not made “shortly after”. Furthermore, the accused submits that Mr Gillespie had a motive to fabricate his account to his son, namely, to exculpate himself and assure his son he had not been involved in such a crime. Although at the time that he made the representations to his son, the police investigation had not commenced, it is contended that Mr Gillespie was in effect planting a seed, seeking to distance himself from the alleged murder, knowing that at some stage the police would become involved.
The Evidence Act does not define what “shortly after” means. It is also notable that the authorities do not provide consistent guidance by way of any defined period for what constitutes a “short time”. Instead, the meaning of “shortly after” requires a normative judgment to be made dependent on the circumstances of the case.
With respect to the representations made to James Gillespie, it appears that they were made within days of the alleged murder and at a time before the police had commenced their investigation into the disappearance of Mr Collisson. In addition, the representations to James Gillespie include representations against interest. Mr Gillespie told him that he, Christopher, was responsible for burning the body.
I am satisfied that the representations made to James Gillespie were made shortly after the asserted fact occurred and in circumstances that make it unlikely that the representations are a fabrication. In the alternative, I am satisfied that the representations to James Gillespie were made in circumstances that make it highly probable that the representations are reliable.
Accordingly, the representations made by Christopher Gillespie to James Gillespie are admissible.
Suanne Peacey had lived on the farm where the murder allegedly took place since 2022. She is Wade Patterson’s partner. She made a statement to police on 13 November 2023. During oral submissions, the Crown accepted that the timeframe for when the representations were made to Suanne Peacey is imprecise but contends that the conversation likely occurred within a week or two of the alleged murder.
Suanne Peacey stated that one night she observed a fire and then saw the fire brigade attend. On the Crown case, this was on 24 September 2023. One or two nights later, she looked out the bedroom window and could see the blue tractor being driven along the road from the direction of Mr Gillespie’s driveway towards the river. On the Crown case, this was Mr McMillan-Davies moving the body. A day or two after seeing the tractors, Suanne Peacey’s partner Wade Patterson repeated to her in detail a conversation he had with Mr Gillespie about the shooting.
A few days after that conversation, Mr Gillespie asked them to dispose of his bins at the tip and kept making comments like, “the police are coming”. When they went to get the bins, Mr Gillespie made a series of representations.
The representations included the following:
(a) “He shot old mate, he fucking shot him in the face and he shot him again”. (b) “He was hunting him down like a dog, he was only from me to Suanne away” (indicating distance). (c) “Old mate was running away and begging for his life and then he shit himself while he was running away” and said he went and hid behind a tree. (d) “Forrest hunted him down like a dog and went and shot him again”. (e) That they went back with the tractor.
During oral submissions, the Crown accepted that the fact that Mr Gillespie made comments to Suanne Peacey such as, “the police are coming”, may indicate that Mr Gillespie was aware of impending police involvement at the time the representations to Suanne Peacey were made. This would extend the possible timeframe of the representations to approximately three weeks after the alleged murder. The Crown therefore did not press s 65(2)(b) and relied on s 65(2)(c) instead.
The Crown relies on the following circumstances to establish that it is highly probable that the representations are reliable:
(a) Mr Gillespie and the accused were friends prior to the shooting. (b) Part of what was disclosed were statements against Mr Gillespie’s interest. Within the disclosure was implicit acknowledgement of Mr Gillespie’s role in disposing of the body. (c) Suanne Peacey and Mr Gillespie were not close friends or family. The relationship was not one where confidentiality was assured. The Crown submits it is extremely unlikely that one would fabricate such a serious allegation against a friend, whilst being a decades-long resident of a small community, where confidentiality was not assured. (d) The details of the representations are memorable and of a nature that the listener would likely be able to recall the terms of what was said when she made her statement approximately a month later.
The accused submits that the representations are self-serving and that Mr Gillespie had a motive to fabricate the narrative to distance himself from any involvement with the shooting.
There is a degree of uncertainty as to when these representations were made to Suanne Peacey. The alleged murder took place on the evening of 25 September 2023. Ms Plasto reported Mr Collisson missing on 14 October 2023. The police had spoken to Mr Gillespie at the farm by 17 October 2023.
The representations to Ms Peacey were made weeks, not days, after the asserted fact occurred in circumstances where Mr Gillespie was aware of (or at the very least suspected) the impending police investigation. I am not satisfied that the representations were made when or shortly after the asserted fact occurred. I am therefore not satisfied that the representations are admissible pursuant to s 65(2)(b).
However, the detail given by Mr Gillespie and the words used to describe what took place, together with the suggestion that he was involved in moving the body (that they went back with the tractor), are matters that satisfy me that the representations were made in circumstances that make it highly probable the representations are reliable.
Accordingly, the representations to Suanne Peacey are admissible.
Wade Patterson had been living on the farm since mid-2022. Wade Patterson made a statement to police on 15 November 2023.
Wade Patterson described his relationship with Mr Gillespie as a “work relationship”.
Mr Gillespie made representations to Wade Patterson on 24 October 2023, approximately a month after the alleged murder. The representations were clearly connected to the police investigation and Mr Gillespie’s discussions with police that very morning.
The representations included the following:
(a) “We burnt it” (referring to the body). (b) That they stoked up the fire three times. (c) That the deceased was shot in the face and placed in a stump near the river which was burning. (d) That the accused shot the deceased like a dog and that it was on the property down near the river.
The Crown relies on s 65(2)(c) given the lapse of time between the alleged murder and the representations.
The Crown relies on the following circumstances to establish that it is highly probable that the representations are reliable:
(a) Mr Gillespie and the accused were friends prior to the shooting. (b) Part of what was disclosed were statements against Mr Gillespie’s interest, that is that Mr Gillespie burnt the body. (c) Wade Patterson and Mr Gillespie were not close friends or family. It was not a relationship where confidentiality was assured. (d) The details of the representations are memorable and of a nature that the listener would be likely to recall the terms of what was said when he made his statement.
The Crown also relies on the fact that Mr Gillespie was aware that Wade Patterson’s position at the farm had been terminated and that Wade Patterson and Suanne Peacey were to leave.
The accused submits that these representations were an attempt by Mr Gillespie to put in the mind of others that he had nothing to do with the shooting. This is particularly the case as the police had attempted to speak to Mr Gillespie prior to these representations (including that very morning).
The representations to Mr Patterson contain representations against interest. Mr Gillespie told Mr Patterson, “we burnt it”, implicating himself in the disposal of Mr Collisson’s body. Furthermore, Mr Gillespie’s representations include an assertion that the body was placed in a “stump”, which was burning.
The level of detail and the admissions against interest are features of the representations which satisfy me that they were made in circumstances that make it highly probable that the representations are reliable.
Accordingly, the representations made to Wade Patterson are admissible.
On 17 October 2023, Mr Gillespie was spoken to by police on the farm. The conversation was recorded on body worn video. Mr Gillespie said the deceased left the property and that was the last time he saw him. Mr Gillespie told police he did not know what happened to him.
On 19 October 2023, Mr Gillespie told police he had been too busy to attend the police station to make a statement. James Gillespie (who was with him) told police he did not know anything.
On 24 October 2023, Mr Gillespie was spoken to by two officers. He said he would attend that day to make a statement but he did not.
On 25 October 2023, police executed a search warrant at the farm. The officers spoke to Mr Gillespie and he disclosed observing the accused shoot at the deceased with a double barrelled gun. Mr Gillespie took police to the location where the shooting allegedly occurred.
Sometime later, also on 25 October 2023, Mr Gillespie participated in a 2-hour interview with police under inducement. After the interview, Mr Gillespie participated in a 15-minute recorded walkthrough of the scene with police.
The representations made to police included how he knew the deceased and prior interactions. For present purposes, the representations relevantly included the following:
(a) The deceased, Mr McMillan-Davies and Mr Gillespie drove down to the river at School Hill just after dark. (b) The accused pulled up behind not long afterwards. (c) The accused had a “side by side” shotgun in his hand. The accused started to shake the gun. Mr Gillespie told him to put it away. (d) The deceased was saying “Forrest brother, what’s going on? I, I love you, mate, I love you”. (e) There was a bang and the accused shot the deceased in the shoulder/side of the face. A second shot hit the deceased in the chest/face/neck area. (f) The deceased ran towards a big tree. Mr Gillespie saw the deceased running, holding onto his shorts and screaming. He saw the deceased running around the top of the tree and the accused was right behind him. (g) That Mr Gillespie “thought” the body was near the big burnt tree. He had not heard anything about where the body may be and he was concerned it was still on the property. He denied being involved in moving the body.
(a) The timing of the disclosure – after two key events had occurred: the arrest of the accused of whom Mr Gillespie was afraid and the police search warrant at the farm, meaning his boss was now aware of what had happened. (b) Mr Gillespie acknowledged at the commencement of the interview the jurat which was read to him. (c) The interview was given under inducement, noting that the inducement does not cover any falsity of his statement. (d) The interview was given a month after the alleged murder and therefore at a time proximate to the events. (e) The events are so memorable that the details are unlikely to be forgotten.
The Crown submits that the untrue representations (that Mr Gillespie has no knowledge of the location of the remains and was not involved in moving the body) can be considered separately from representations regarding the shooting. Despite the statement to police being under inducement, the Crown submits this did not address his concern about losing his job and home at the farm where he had lived for more than 30 years.
The Crown also seeks to adduce evidence of intercepted telephone calls from Mr Gillespie’s phone to contextualise his interview with police, but submits this material is only relevant if Mr Gillespie’s representations to police are admissible.
The Crown points to the consistency of Mr Gillespie’s representations of the alleged shooting to the civilian witnesses and the police. There is some authority to the effect that the consistency of the representations is relevant to my determination of the “circumstances” within which the representations are made: R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 at [29]; Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [69]-[71]; Williams v The Queen (2000) 119 A Crim R 490; [2000] FCA 1868 at [54].
The accused notes that Mr Gillespie gave conflicting versions of events to police on 17 October and 25 October 2023. This is relied on to support the submission that Mr Gillespie is prepared to fabricate versions to the police.
The Crown relies upon s 65(2)(c). I am not persuaded that the representations made by Mr Gillespie to police were made in circumstances that make it highly probable that the representations are reliable.
I have come to that view for several reasons. Firstly, the representations were not made spontaneously but after a lengthy period of time following the alleged murder.
Secondly, the representations, while consistent in relation to witnessing the accused shooting and killing the deceased, contained conflicting versions as between the accounts given on 17 October and 25 October 2023.
Thirdly, Mr Gillespie was not forthcoming about his role in the disposal of the body.
Fourthly, by the time he made his representations to police, Mr Gillespie was aware that they were investigating the disappearance of Mr Collisson, likely suspecting it to have been a homicide. He was present at the time of the alleged murder and, at the very least, was involved in burning the body. He was a person who was or may have been criminally concerned in the events giving rise to the proceedings and at the time he made his representations to the police, it is highly likely that he was doing his best to minimise his role and maximise the role of the accused.
Accordingly, I am not satisfied that the representations made by Mr Gillespie to the police were made in circumstances that make it highly probable that the representations are reliable and thus the evidence is excluded.
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R
Forrest
(2002) 55 NSWLR 603
(2016) 259 CLR 47
(2000) 98 FCR 204
(2000) 172 ALR 185