R v Carmichael[2020] QSC 326

SUPREME COURT OF QUEENSLAND

1. [1]
   The defendant is charged that on a date unknown on or about 7 May 1997 at Maryborough or elsewhere in the State of Queensland, he murdered Gregory John Armstrong.  The Crown case is that he killed Mr Armstrong by deliberately shooting him in the head.
2. [2]
   In recent times the matter was case-managed by Davis J who, on 18 September 2020, ordered pursuant to ss 614 and 615 of the Criminal Code that the defendant be tried by a judge sitting without a jury.  Section 615C requires that I record:

   1. (a)
      the principles of law that I have applied; and
   2. (b)
      the findings of fact on which I have relied.

The offence of murder

3. [3]
   Before the defendant can be found guilty of the charge of murder, I must be satisfied beyond reasonable doubt of four things:

   1. (a)
      that Mr Armstrong is dead;
   2. (b)
      that the defendant killed him, that is, he caused his death;
   3. (c)
      that the killing was unlawful, that is, not authorised or justified or excused by law; and
   4. (d)
      that the defendant killed Mr Armstrong intending to cause his death, or at least intending to cause him grievous bodily harm.

The issues in this case

4. [4]
   The Crown and the defence agreed on many matters which became the subject of a set of formal admissions which were tendered pursuant to s 644 of the Criminal Code.
5. [5]
   Because of the narrowing of factual issues in the case during pre-trial management by Davis J, there were far fewer witnesses than anticipated many months ago.  The essential issue in the case was distilled by Davis J in a pre-trial ruling delivered on 30 September 2020.^[1] 
6. [6]
   The Crown accepts that it cannot prove its case unless I am satisfied that the defendant truthfully confessed to Ms Susan Messer.  The Crown advances a circumstantial case, and relies upon the evidence of alleged admissions. None of the alleged admissions made to persons other than Ms Messer are said to constitute an express confession to the killing of Mr Armstrong.^[2]  Instead they are said to help prove the fact that the defendant confessed to Ms Messer. 

General principles of law

7. [7]
   Various general principles which apply to all criminal prosecutions must be applied by me.  In addition, there are principles which apply in a case where the prosecution substantially relies upon circumstantial evidence.  I must have regard to these principles to the extent that the prosecution relies upon circumstantial evidence, rather than admissions, to prove a fact. 
8. [8]
   The relevant principles were conveniently stated by Martin J in R v Pentland.^[3]  I reproduce them and have applied them:

12. “[12]
    The prosecution has the onus of establishing the offence charged beyond reasonable doubt. There is no onus on the defendant.
13. [13]
    In arriving at a verdict I must act impartially and dispassionately and only on the evidence received at the trial.
14. [14]
    The issues that exist must be resolved by taking into account all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which may have been raised by the evidence or which may arise about the facts.
15. [15]
    The evidence which I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression which he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or at the committal, and my assessment of other evidence including documents and other material.
16. [16]
    It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it. The fact that I might not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’s evidence. I may accept parts of it if I think it is worthy of acceptance.
17. [17]
    In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence. I must not engage in speculation or conjecture to fill in any gaps in the evidence but it is up to me to decide whether I accept particular evidence and if I do, what weight or significance, it should have.
18. [18]
    I also bear in mind that there is a difference between honesty and reliability. A person might honestly believe what he or she says about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what they heard or saw. In this case, the passage of time between the events surrounding the charge and the giving of evidence in this trial is of particular importance.
19. [19]
    The defendant has not given or called evidence. That is his right. He is not bound to do so. The burden on the prosecution does not change and the fact that the defendant did not give evidence is not evidence against him. It proves nothing at all.

A circumstantial case – the principles

20. [20]
    When the case against an accused person rests substantially upon circumstantial evidence a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.^[4]
21. [21]
    To be satisfied beyond reasonable doubt of the guilt of the defendant it is necessary not only that guilt should be a rational inference, but also that it should be the only rational inference that the circumstances would enable to be drawn.^[5]
22. [22]
    For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a finding of guilt, if the inference of guilt is the only inference open to a reasonable person upon a consideration of all the facts in evidence.^[6]
23. [23]
    Further, in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.^[7]
24. [24]
    The evidence is not to be looked at in a piecemeal fashion.^[8] But, a single circumstance inconsistent with a conclusion of guilt may be of more importance than all the rest inasmuch as it destroys the hypothesis of guilt.^[9]”

Admitted facts

9. [9]
   At the start of the trial the following facts were admitted by the Crown and the defendant pursuant to s 644 of the Criminal Code as sufficient proof of those facts:

1. “1.
   At and prior to the time of the alleged offending the defendant was involved in the drug scene at Maryborough and would on occasions purchase, sell and use drugs at consumer level. The drugs involved were “speed” (methylamphetamine or amphetamine) and cannabis.
2. 2.
   Prior to, and around the time of the disappearance of Gregory John ARMSTRONG the defendant offered his services to, and would on occasions, collect drug debts on behalf of others.
3. 3.
   At and prior to the time of the alleged offending the defendant had a reputation for being physically violent and on occasions would assault persons who owed others money.
4. 4.
   At a time after 2 September 1997 the defendant arranged for others to remove a rifle that he had stored behind a false wall in the wardrobe of his residence. On 26 November 1997 arrangements were commenced to provide this rifle to police and this resulted in the rifle being provided to police on 8 December 1997.
5. 5.
   The black jacket seized by police from Donna Yvette McKillop on 31 March 1998 has the defendant’s DNA profile on the inner left arm lining towards the cuff.
6. 6.
   The Maryborough Show was held from Wednesday 21 May 1997 to Friday 23 May 1997.

Background

7. 7.
   In 1997, both the accused and Gregory Armstrong were residents of Maryborough. Mr Armstrong went missing around the time of his birthday on 7 May 1997.  On 22 May 1997 the brother of Mr Armstrong’s landlord made a missing person report to the Maryborough Police.  It was reported that he had left his place of residence, 43 Ferry Lane, Maryborough, without taking any of his possessions and had not made any arrangements for payment of rent. Amongst those possessions were Mr Armstrong’s wallet containing a Commonwealth Bank card and other personal papers.
8. 8.
   Police searched Mr Armstrong’s possessions and made extensive local inquiries in an effort to locate Mr Armstrong without success. These inquiries included:

1. The Stanthorpe area, where Mr Armstrong had on occasion worked picking fruit.
2. Townsville and Cairns after information had been received that Mr Armstrong may be working on a trawler.
3. A photograph of Mr Armstrong, with a QPS message, was forwarded to the Hervey Bay Police Station for display purposes.
4. Mr Armstrong’s doctor had not seen him for some time.
5. Missing person flyers were left for display at the Criterion, Sydney, Oxford and Federal Hotels.
6. The Commonwealth Bank advised that the last transaction on Mr Armstrong’s bank account was at an ATM in Maryborough on 7 May 1997.
7. Mr Armstrong had $15,000 held in trust in Victoria and that money has not been accessed.
8. A press release was made in the Maryborough and Hervey Bay areas indicating that Mr Armstrong was missing.

9. 9.
   From 10 July 1997 the following further police inquiries were also made without success:

1. Inquiries with the Queensland Department of Fisheries as to whether Mr Armstrong had re-applied for his fishing licence that had expired in September 1996.  He had not reapplied.  Nor had he applied for an interstate (NSW) fishing licence.
2. Further inquiries were made as to whether Mr Armstrong had been working from any Queensland coastal towns in the fishing industry and there was no record of him working.
3. A close friend of Mr Armstrong, Troy Young, who lived in Victoria, had not heard from Mr Armstrong since the time of his disappearance.
4. Confirmation was obtained that no further transactions had been made on Mr Armstrong’s Commonwealth Bank Account since 7 May 1997. The ATM security tape for 7 May 1997 had also been taped over.
5. Mr Armstrong’s parents, who resided in Victoria, had been asked by Mr Armstrong to send him money on two occasions prior to him going missing.  They sent him $3,000 on the first occasion and $7,000 on the second occasion. Mr Armstrong’s explanation to them on both occasions was that “Someone came up to me on the street and told me that if I gave him all of the money they will double the money within a week, so I gave it all to them, I don’t know who they were and I haven’t seen them since.”
6. Just prior to going missing Mr Armstrong sold his vehicle.
7. Further flyers were distributed to relevant companies and on Market Days with no success.

10. 10.
    Mr Armstrong was in the habit of contacting his mother at least once a week and his father every three weeks or so.  He would always contact his mother on Mother’s Day and family members on their birthday.   His family have not heard from him or had any contact with him since his 30^th birthday.
11. 11.
    Mr Armstrong was educated at Special School and could only comprehend small sentences and would lose concentration if there were difficult words. He was placed on an invalid pension when he left Special School at 16 years of age and resided with his parents at Great Western, a small town between Stawell and Ararat, Victoria. Around this time, he cut his wrists whilst intoxicated due to the taunts of his friends whilst camping at a local property.
12. 12.
    Mr Armstrong started working at 18 years at a Poultry works, in the chiller and then the dressing line.  After that closed, he worked at an Abattoir for two years. After July 1994 he picked fruit in South Australia, returning home after wrist injury prevented him from working.  After his wrist healed, he left to live in Queensland.
13. 13.
    He did have money kept in trust for him by his parents and at the time of his disappearance that amounted to $15,000.  In the months leading up to his disappearance he did not make a request of his parents for money to clear any debts.

Last Sightings of Mr Armstrong

14. 14.
    Peter Baulman was born on 10 July 1957 and 39 years old at the time.  He provided a statement on 19 September 1997, with an addendum on 25 August 2018.
15. 15.
    At the time he lived at 43 Ferry Lane Maryborough in a house owned by his sister Annemarie, a teacher.  Anne-Marie had stayed with him at the house from just before Christmas 1996 and moved to the Gold Coast about a month later. During this time Annemarie arranged for the house to be painted by a painter named Terry who lived with a partner named Ruth at 65 Ferry Lane, Maryborough.
16. 16.
    It seems that the painting work commenced after Annemarie had left for the Gold Coast and when Terry commenced, he had Mr Armstrong with him, over about three weeks it took to finish the job.  About 4 or 5 days before the painting finished, he had discussions with Mr Armstrong about moving into a room at the house, which was agreed.  He would pay $50 a week rent and put in for groceries.
17. 17.
    When Mr Armstrong had been drinking, he would talk about having a plantation of Marijuana somewhere that he would say would be able to clear all his debts. He was worried about the Marijuana “getting ripped off”.  He indicated that he had the plantation with Roger, who lived with Lani in Churchill Street, Maryborough.
18. 18.
    Prior to his birthday Mr Armstrong told him that he wanted to sell his car to clear his debts.   He did not mention how much his debt was and he already had a buyer for the car.  He later told him that he got $1,500 and some Marijuana for the car.
19. 19.
    Mr Armstrong had a party at the house for his 30^th birthday on 2 May 1997.  Mr Armstrong got drunk at the party and started to talk, for the first time, about getting $30,000 when he turned 30.
20. 20.
    About a week before Mr Armstrong’s birthday he told him that his parents said he couldn’t handle his own affairs, was in too much debt and was not getting his inheritance.  He also said social security were messing him around because he wasn’t declaring all of his money.  He mentioned suicide and Mr Baulmann offered to lend him some money.  He last saw Mr Armstrong on the morning of his disappearance and did not notice anything strange in his behaviour.
21. 21.
    Over the following week he spoke to a number of people whilst enquiring about Mr Armstrong’s whereabouts, telling them if they had seen anything to let him know and he was going to report Mr Armstrong missing to police, which he did.
22. 22.
    In the addendum statement of 25 August 2018, he recalls that when Mr Armstrong sold his ute “he got a massive black garbage bag of marijuana and a sum of money” but he cannot recall the amount. 
23. 23.
    Annemarie Baulman was born on 7 December 1952 and 44 years old at the time.  She provided a statement on 21 September 1997.  She first met Mr Armstrong when he was working for the painter Terry and when she returned to Maryborough from the Gold Coast in the end of January 1997 Mr Armstrong was living at her house.
24. 24.
    He was a good tenant who was happy, energetic, helpful and a good cook.  He would go to the pub about 3 times a week and was a happy drunk.  He had a lot of acquaintances and a few friends.  He always seemed concerned about his debts and she did not know how much they were, but they were getting him down and he was becoming increasingly concerned.  She recalls that he had to sell his car to pay some debts.
25. 25.
    She recalls that he had his 30^th birthday on Friday 2 May 1997 at her house.  He got “pretty drunk and was happy and he was saying that he was going to be a rich man when he turned 30 because he was going to get $30,000”.  The next day he wanted to know when the banks opened so that he could get his $30,000 and he became anxious when he was told that he would have to wait until Monday.
26. 26.
    She recalls that on the Tuesday morning she helped Mr Armstrong fill out his ‘dole form’ which was something that either she or her brother Peter would do to help him out every fortnight.  He had to submit the form that day.  Mr Armstrong left the house at 8 am and she has not seen him since.  He did not come home for dinner that night and did not contact her.  Later that week she and her other brother Michael reported him missing to police.
27. 27.
    A leather jacket he usually took everywhere with him was still in his room.  His pushbike, described as black and second-hand, and helmet, described as foam and “I think was white” were missing.  About 6 weeks prior to making her statement a person from the Maryborough Department of Social Security rang and informed her that they had Mr Armstrong’s bumbag.
28. 28.
    Alecia Younie was born on 12 October 1976 and was 20 years old at the time. She provided three statements, on 19 September 1997, 25 September 1997 and 11 January 2019.  She first met Mr Armstrong on 20 February 1996 when she was being assaulted by her ex-boyfriend and Mr Armstrong, who was visiting an adjoining flat, heard the assault and intervened.  He later assisted her moving out and used to visit her when she was staying at the Bundaberg Women’s Shelter and after she moved to another flat at Maryborough, helping her move.
29. 29.
    She was told by Mr Armstrong, just before his birthday on 2 May 1997, that he had sold his white Falcon utility for $1,300 as he needed the money quick to pay a drug debt.
30. 30.
    She last saw Mr Armstrong at about 11 am on 7 May 1997 coming out of the Commonwealth Bank in Adelaide Street with “Shane” and “Roger”.  They told her that they were going to get something to eat and ‘then they were going to get blind at the Central.’  She arranged to see him at around 5 pm that afternoon to drop off his birthday present.  “Roger” said he would drop Greg off at home as he ‘had to pick up Larni at 5 o’clock’.  Shortly after she noticed a male who appeared to be staring at Mr Armstrong whilst he was sitting with “Shane” and “Roger” at the Gardenia Coffee shop.  She approached Mr Armstrong and asked him whether he knew this male and “Roger” told her “Don’t worry about him, he’s no one.”  She has not seen or heard from Mr Armstrong again.
31. 31.
    She describes “Shane” as of aboriginal extract, about 24 to 30 years old, of average build and about 5’5” tall, with dark short hair.  “Roger” was about 25 to 28 years old, slim but well-defined build, about 5’7” tall with an olive complexion and dark short hair.
32. 32.
    In her statement of 25 September 1997, she recalls that on about 7 or 8 April 1996 she was sitting in a car outside Terry (the Painter) and Ruth’s house with Mr Armstrong and Stacey Ammenhauser when Mr Armstrong pointed out a male and called him “Enemy No. 1”.  This male was sitting in another car she believes was a cream coloured Holden sedan.  She describes this male as about 30 years of age, about 6 foot or a bit bigger, blonde/brown long hair with a long goatee.  His build was similar to “Humpty Dumpty” and he was “fairly fat and ugly”.
33. 33.
    In her statement of 11 January 2019, she indicates that at Mr Armstrong’s birthday party, on the night of Saturday 2 May 1997, Mr Armstrong told her he wanted to marry her.  He was serious and it was a surprise to her.  She didn’t reply because he had been drinking and told him she needed to think about it.
34. 34.
    She also adds that when she saw Mr Armstrong at the coffee shop, she also told him that they needed to talk about his marriage proposal further and they would that afternoon at 5 pm.  When she went to Mr Armstrong’s house at 5 pm he was not home and had not come home.  He also did not answer his mobile phone.
35. 35.
    Stacey Ammenhauser was born on 21 January 1980 and was 17 years old at the time.  She provided a statement to police on 24 September 1997 with an addendum dated 25 September 1997, indicating that she first met Mr Armstrong in September 1995 and initially did not have much to do with him and had only met him “about five times.”  She moved in July 1996 after which Mr Armstrong would come to her house “about once a week or more”, apart from the period from 11 October 1996 to March 1997 when she moved with her mother to Landsborough and did not see him.
36. 36.
    She recalls Mr Armstrong telling her that he had sold his vehicle to pay his debts for dope and speed.  On another night he said he was growing marijuana but did not say where.
37. 37.
    She cannot remember when it was but she recalls being with Mr Armstrong and Alecia (Younie) parked in a car outside Terry (the Painter’s) house when Mr Armstrong pointed to a male person walking into Terry’s and said “That was enemy number one”.  She did not know this person and did not take much notice of what he looked like.
38. 38.
    Kimberlly (sic) Alford was born on 2 May 1970 and was 27 years old at the time.  She provided a statement to police on 2 October 1997 indicating that she first met Mr Armstrong about 2 ½ to 3 years earlier at the Carlton Hotel and got to know him socially.  They would always “say hello and would usually have a general chat about whatever was going.”  His birthday was on the same date as hers and she recalls he went missing not long after his birthday.
39. 39.
    She recalls Mr Armstrong telling her approximately a few weeks before he disappeared that he had sold his white Falcon ute for $1,500 or $1,800.  He said that the money would get him out of debt.
40. 40.
    Grant Davies was born on 31 December 1966 and was 30 years old at the time.  He provided a statement on 23 November 1997 indicating that he first met Mr Armstrong “around the middle of 1996” and he became a good friend.  They would often go for a beer at one of the local hotels together.
41. 41.
    The last time he saw Mr Armstrong was a weekday evening, at about 8.30 to 9.00 pm, at the Cinema complex outside the cinema.  He had told him that he sold his ute to pay off debt.  He was concerned about not getting the full payment for his ute, another pound of marijuana, and was going out to see the person.  He told Mr Davies that the person he was going to see was "someone that no-one would fuck with".  He kept walking and that was the last time he saw him.
42. 42.
    Mark Kann was born on 24 September 1974 and was 22 years old at the time. He provided a statement on 24 November 1997 and knew Mr Armstrong “on a social basis for about 2 years.”
43. 43.
    He recalls Mr Armstrong telling him, “(s)ometime in March or April 1997” that he had sold his ute to “Drew” for a quantity of marijuana, and that he gave the marijuana to his friends Roger and Lani to sell for him.  Sometime after this conversation, Mr Armstrong told him that he had 'ticked up' about 6 ounces of marijuana for $1,000 but didn’t say who he owed that money to.  He has not seen Mr Armstrong since this occasion.
44. 44.
    Martin Kann (brother of Mark Kann) was born on 5 December 1970 and was 26 years old at the time. He provided a statement on 24 November 1997 indicating that he first met Mr Armstrong in about the middle of 1996 through his brother Mark and would see Mr Armstrong “every now and then”.  He used to go fishing and camping with him.  In his statement he indicates that around about the week before 22 May 1997 he saw Mr Armstrong riding a “white 10 speed push bike at the intersection of John and Churchill Streets, Maryborough. He was facing down Churchill street.  He was wearing a black leather jacket and a white helmet…(with) no face mask and came down over his ears… He waved to me and I waved to him.” He knows that it was around 22 May as that is his son’s birthday.  He has not seen or heard from Mr Armstrong since that day.
45. 45.
    Rory Browne was born on 1 October 1946 and was 50 years old at the time.  He provided a statement on 24 November 1997 indicating that he and his business partner operate a Hot Dog machine from a food van in Maryborough.
46. 46.
    He first met Mr Armstrong on around 10 January 1996 when he purchased some hot dogs from him and discovered that he was a painter.  He and his business partner had two houses and wanted to get one painted.  Mr Armstrong and a male called Terry painted the house and it cost his business partner “either $1400 or $1500”. Mr Browne then moved into the house on 13 February 1996.
47. 47.
    Since that time, he indicates that he has “seen Greg around town” but he “didn’t see Greg or Terry for a while in late 1996.”  On 5 June 1997 he recalls it was ‘market day’ in Maryborough, a Thursday, and the hot dog van was set up near the Commonwealth Bank in Adelaide Street.  He indicated that between 10am and 11 am business was fairly quiet and he was sitting at a table outside the van having a cup of coffee.  He then says the following:

“I remember as I was sitting there Greg walked past me and said “G’day”. I saw that he was wearing a grey t shirt type top. I can not remember whether he was wearing shorts or jeans that day. He walked past me and I watched him walk up to the Commonwealth bank and stood at the corner of the bank near the steps.

I remember he was just standing there by himself and that he appeared to be waiting for someone. He stood there for a couple of minutes and I decided to go back inside the van… I didn’t even know that he had gone missing until… about three or four weeks after …”

48. 48.
    Rebecca Andrews was born on 30 October 1981 and was at the time 15 years old.  She provided a statement on 30 December 1997 indicating that she knew Mr Armstrong having met him in 1994 when she lived with him and Joshua Canavan at Salem Flats.  She also lived with them at another address for 2-3 weeks.  She describes their relationship as being ‘fairly good friends’ and was aware that he would always try to call his parents on a Sunday.
49. 49.
    She saw him about 3-4 weeks prior to his disappearance at which time he told her that he ‘owed people about $5,000 for drugs.’  She last saw him on 7 May 1997 outside the Central Hotel before lunchtime.  He appeared nervous and fidgety and he told her that he was ‘going around to Ruth and Terry’s to sort something out.’
50. 50.
    Pricilla Neilson was born on 1 April 1978 and was 18 years old at the time.  She provided a statement on 8 September 2018 that indicates her former name was Priscilla Carter and she first met Mr Armstrong when she moved into a house with Jason and Alisa Newhall, sometime around mid to late 1996.  Mr Armstrong used to live in a house across the road and down two or three doors. He used to come over to her place and they would smoke marijuana “now and then”.
51. 51.
    She recalls that that on the night of Mr Armstrong’s birthday (2 May 1997), after the party, he arrived at her house and told her that someone was after him. He got very upset and started crying.  He told her it was because he owed them money.  After “some time”, and she cannot recall when, he left, and she has not seen him since that time.
52. 52.
    Jason Newhall was born on 3 January 1975 and was 22 years old at the time.  He provided a statement on 28 January 2019 indicating that he had known Mr Armstrong for about two years before he went missing and would often chat to him.
53. 53.
    He indicates that at Mr Armstrong’s 30^th Birthday Party (Friday 2 May 1997) Mr Armstrong told him that about two weeks prior he had purchased $3,200 worth of marijuana of drugs on tick (credit) as he was expecting an inheritance for his birthday and would pay it back.  He looked “very down” and showed him what cash he had in his wallet but that it was not enough.  He was going to the bank on Monday to get the rest of the money and that “a carload of people coming from Gympie to get the money off him on Monday morning.”  He last saw Mr Armstrong that evening.
54. 54.
    Trevor Walker was born on 6 March 1966 and was aged 31 years at the time. He provided a statement on 28 February 2019.  He knew Mr Armstrong as he lived next door.  He had also arranged for Mr Armstrong to get work picking fruit locally.
55. 55.
    Just before he went missing, he told Mr Walker that he would buy drugs on tick, then sell them but not pay off his debt.  Mr Walker cautioned Mr Armstrong about doing this, but he didn’t seem to care.

Defendant’s Movements

56. 56.
    In late August 1997, the defendant left Maryborough and travelled to Mackay.
57. 57.
    On 2 September 1997, the defendant shot and killed a man.  On 4 September 1997 he was arrested and remanded in custody.  He was ultimately convicted of manslaughter and wounding and sentenced to 11 years’ imprisonment.

Further Police Investigation

58. 58.
    The date that Mr Armstrong sold his ute was established to be 4 April 1997.
59. 59.
    Approval was obtained by police in April 1999 to offer a $50,000 reward for information which leads to the apprehension and conviction of the person or persons responsible for the disappearance and suspected murder of Mr Armstrong.  A copy of a Notice issued by the police is attached and marked “A”.  On 20 May 1999 police released information regarding this reward to the police through Channel 7 and the Chronicle. A copy of a newspaper article dated 21 May 1999 is attached and marked “B”.  This reward was subsequently increased to $100,000 and then, sometime prior to 6 September 2006, to $250,000. (See attachment “C”.)
60. 60.
    On 2 August 2004 police compiled a report that was delivered to the Coroner. On 21 March 2005 the Coroner delivered findings without being able to meaningfully progress any investigation.
61. 61.
    The investigation was recommenced in 2018 as part of a policy to attempt to solve identified cold cases.  Police interviewed again witnesses who had given statements during the first investigation. Some additional witnesses were identified who provided statements.
62. 62.
    On 19 September 2018 police conducted a search of an area within the Tuan Forest for any remains or items of interest to the investigation. Nothing of interest was located or identified.
63. 63.
    Attached and marked “D” is a copy of a police “Running Sheet” dated 11 September 1997.”

Further admissions

10. [10]
    At the conclusion of the Crown case the following additional admissions were made by the Crown and the defendant:

1. “1.
   Nathan Paul Kent was born on 13 June 1972 and 24 years old at the time. He provided a statement on 8 November 1997, with an addendum on 26 September 2018.
2. 2.
   He is a diagnosed schizophrenic who indicates at the time of his first statement that he has been receiving medication for about two years.
3. 3.
   He met Mr Armstrong through a friend, Scott who lived in a house with Mr Armstrong.  They needed another to share the house, so he lived with them for “a couple of months or so”.  He says that at this time he was not on any medication, so he went back home to live with his mother. He also indicates, but does not say when, that he and Mr Armstrong used to talk about suicide and adds “but I feel he would not have had the courage to commit suicide.”
4. 4.
   In his 2018 statement he says, “I only lived with Greg for 3 weeks or so” and that he remembers “one morning Greg woke up and was walking around the house yelling “someone talk to me”. When I got up I asked him what was wrong, and he said he was lonely.  He did mention he should kill himself, but it was just him talking, he was not serious.”
5. 5.
   Patrick Shaun McMurtie was born on 8 February 1971 and 26 years old at the time. He provided a statement on 20 November 1997. He first met Mr Armstrong in 1994 or 1995 at Stawell, Victoria, through is brother who was a friend of Mr Armstrong. They became good friends. Sometime in the middle of 1995 Mr Armstrong moved to Maryborough. Around three months later Mr McMurtie also moved to Maryborough into a flat with Mr Armstrong.
6. 6.
   He says that Mr Armstrong “never had a girlfriend while I was living with him and he would have trouble picking up girls. This would make him upset up to the point of mentioning suicide. He used to say things like “I might as well go and kill myself” and go off his brain.  He would clam down after about half an hour after being knocked back by a girl.  I never saw Greg attempt to kill himself and he never mentioned it when he wasn’t drunk.”

Police witnesses

11. [11]
    The first witnesses at the trial were serving or retired police officers who had been involved at different times in Operation Fernbridge, an investigation into the disappearance and suspected murder of Gregory John Armstrong.

Susan Messer

12. [12]
    Ms Messer is a critical witness for the prosecution since she is the only witness to whom the defendant is alleged to have confessed to killing Mr Armstrong.  As noted, the prosecution case depends upon acceptance of her evidence that such a confession was made.  For reasons which I shall give, her evidence was unsatisfactory.  Substantial doubts over her credibility and reliability as a witness leave me in considerable doubt as to whether the defendant made the alleged confession to her.

Ms Messer’s evidence-in-chief

13. [13]
    In 1997 Ms Messer was living at Albert Street, Maryborough with her two young children.  She knew Greg Armstrong through a circle of friends.  Greg Armstrong had been a casual acquaintance for a few months.  He and Ms Messer used to take drugs and “get high together”.  They mainly used amphetamine.
14. [14]
    Ms Messer also knew the defendant, who lived nearby.  He was simply an acquaintance, whom she saw when “scoring drugs or selling drugs or just getting – taking drugs together”.  A closer friend of Ms Messer than the defendant was Les Ryan.  Ms Messer and Mr Ryan were not in a sexual relationship but they were, in her words, “pretty good acquaintances.  Pretty good friends”.  After Greg Armstrong disappeared, Les Ryan would come over to Ms Messer’s place on a regular basis.  They would consume heroin together.
15. [15]
    Ms Messer gave evidence of an occasion when the defendant turned up at her home one night.  Her children had gone to bed and she thought that he must have arrived at around 7.30 pm.  He put a couple of articles of clothing on a chair just inside her front door.  Ms Messer said that something appeared to be troubling him.  It was not unusual for the defendant to visit her home when he was upset because he had a difficult relationship with his girlfriend Michelle and she could be “quite abusive”.  On this night, however, the defendant seemed different and he did not say anything about where he had been for a while.  Ms Messer and the defendant used amphetamines after he arrived.
16. [16]
    In her evidence on Monday, 19 October 2020, Ms Messer gave the following recollection of a conversation which she had with the defendant some time that night:

“He said that they were camping out at the Jew Hole.  Critter – Shane, Critter’s son, him and Les.  And Greg had dared him.  They took him out there because Greg owed money.  And Greg had said to him, “Go on, then.  Pull the trigger.  Pull the trigger.  Shoot me.  Go on, then.  Do it.”  And he did it twice.  Shot Greg, and he turned up at my doorstep.  And this sounds very callous, but the body and the gun were still out there.  And I said to him, “Well, you better go and deal with it, then, hadn’t you?”  And that sounds terrible. 

Okay.  I’m sorry to do this, but I’ve just got to ask you a couple of questions about what you said.  Now, you said – I think you said they were camping at the Jew Hole.  Did he say when they were doing that?‑‑‑No.  They’d come from there.  He’d come from there. 

He’d come from there?‑‑‑Yes. 

Did he mention how he had arrived – how he had come from there?‑‑‑No, I don’t know. 

Okay.  You said they were camping at the Jew Hole.  I ‑ ‑ ‑?‑‑‑Yes.

17. [17]
    She explained that the person named Shane was Shane Josefski, and that “Critter’s son” was young at the time, aged maybe 12 or 13. 
18. [18]
    Ms Messer said that she did not know how the group, including Mr Armstrong, got out to the Jew Hole.  The police evidence explained that the Jew Hole is a fishing spot on the Tuan Creek.  It has that name because jewfish could be found there.  The location of the Jew Hole is depicted more accurately on Exhibit 7.  Exhibits 2, 3, 4 and 5 are photos of it and the nearby camping area that were taken by police during the initial investigation.  The Jew Hole is about 30 kilometres from Maryborough and retired Detective Senior Sergeant Lindsay thought it would take more than half an hour to drive there.
19. [19]
    In further evidence-in-chief Ms Messer reiterated her recollection of being told by the defendant that before the shooting Mr Armstrong was egging the defendant on, doubting that he would pull the trigger and saying things like “Go on, then.  Pull the trigger.  Shoot me.  Shoot me”.  She also reiterated that, after being told about these things, she asked the defendant “Where’s the body?  Where’s the gun?”, and was told that they were still out there, to which she just said “Well, you better go deal with them”.
20. [20]
    Ms Messer could not recall when the defendant left her home.  She could not say whether it was after half an hour or an hour.  She could not even say whether the sun was up when he left, or whether her children were awake.
21. [21]
    She next saw the defendant a few days later in circumstances in which he had come to her house to “score drugs”.  He was only there for about 10 minutes and then his girlfriend Michelle was screaming on the footpath outside the house, and the defendant left with her.
22. [22]
    Ms Messer did not see the defendant at her home after that.  Before these events he would call in to her house a couple of times a week to drop off or get drugs. 
23. [23]
    A long-sleeved coat and a tee-shirt which the defendant had left on a chair near the front door remained there.  Ms Messer said that someone came and got them but she could not remember who it was.

The cross-examination of Ms Messer

24. [24]
    The first matter to emerge from the cross-examination of Ms Messer is that she spoke to police on a number of occasions and gave a number of statements to police.  She did not mention anything about the defendant confessing to her in her early statements.  Instead, in a written statement dated 20 August 1998, she gave an account of what another associate at the time, Les Ryan, was said to have told her.  According to this statement:

“Les told me that Peter, Les and Boyd had taken Greg to the Jew Hole fishing spot on Tin Can Bay Road.  I don’t know what the reason was for them taking Greg out there was, but I have been told that Boyd was on taking amphetamines at the time and that he was erratic on them.  Les told me that Greg was shot by Boyd and that Les and Peter panicked and took off, leaving Boyd at the scene. … Boyd was left at the Jew Hole without a vehicle.”

25. [25]
    No satisfactory explanation was given by Ms Messer in her evidence as to why she did not mention anything in the statement about a confession by the defendant.  When asked why she did not mention his alleged confession in the statement, she responded:

“Because in my view – like I say, I was doing drugs, I like to hide, sort of, then, from police and getting busted and things, and in my mind, okay, it’s not a lie.  If I don’t talk about it – do you know what I mean?  I haven’t lied about it.  And so I didn’t talk about it, so I haven’t lied.  I know that that sounds crazy.  I know.  All right?  But that’s the frame of mind.”

This evidence does not satisfactorily explain why she was prepared to implicate the defendant in the murder of Mr Armstrong on the basis of Mr Ryan’s alleged admissions, but not directly implicate him on the basis of the defendant’s confession to her.  In addition, it was not simply a case of not disclosing that such a confession had been made to her.  When she gave a later statement on 29 November 2000 to police, she stated:

“I can say that Boyd never spoke to me about what had happened and I never let onto him that I knew what Les had told me or anything else as far as that goes as I just did not want to get involved.”

26. [26]
    When it was put to her that this statement was true, she denied it and said that she still feels like “a dog” to this day saying anything about it.  When it was pointed out to her that she was “telling on Boyd” when she told police what Les Ryan had allegedly told her, she said:

“But nothing that Boyd had admitted anything to me because I knew the ramifications of it, even then, and Boyd was a friend”.

This answer is unconvincing.  If Boyd was a friend who she did not wish to implicate in the murder, then she would not have told police the things which Mr Ryan allegedly said about him.

27. [27]
    Returning to the statement which Les Ryan allegedly had made to her, Ms Messer explained that she and Ryan had both been using heroin at the time of this alleged statement, that Ryan was falling asleep or half asleep, and that at that time she was in the middle of a period of chronic addiction to drugs.  She was injecting amphetamine every day and also using heroin which was her drug of choice.  Only she and Ryan were into heroin.
28. [28]
    The statement to police about what Ryan had said to her recounted that Peter Canavan,^[10] the defendant and Les Ryan had taken Mr Armstrong to the Jew Hole on a camping trip.  Ms Messer neglected to tell police that Ryan had also told her that another man, Shane Josefski, had also been in the group.  Ms Messer said that she had forgotten to mention his name to police in her original statements but mentioned his name in her third statement taken on 29 November 2000.
29. [29]
    Ms Messer accepted that she was lying when she said in that statement, “I can say that Boyd never told me about what had happened.”
30. [30]
    She admitted that she lied about this matter at a compulsory hearing before the Queensland Crime Commission (QCC).  She explained this by saying that at the time and with the lifestyle that she had, she “still had a lot to hide”.
31. [31]
    Next, Ms Messer admitted lying about these matters when she answered questions at the committal hearing.  At one part of her evidence in the committal proceeding she confirmed that what she had told police about the defendant having never spoken to her about what happened was the truth.  However, in her evidence before this Court, she said that was not the truth at all, and accepted that she was lying under oath at the committal.
32. [32]
    Having admitted lying under oath at the QCC and also at the committal, Ms Messer said:

“I had trouble getting my head around to the fact that my callous response to, “Well, he’d better go deal with the body and the gun then, hadn’t he?”  And that’s been a big issue with me as well because I’m not that person any more.”

33. [33]
    Ms Messer gave evidence about her use of drugs over the years and steps that she had taken towards her rehabilitation.  She said that her drug use was never as bad as it was when she was living in Albert Street, Maryborough.  After some years she got off the drugs but went back on them in 2010 and in later years was using them “just randomly”.
34. [34]
    Ms Messer was asked about the timing of the defendant’s alleged visit to her home when he allegedly confessed.  Again, she could not say what time it was and could only imagine how he got there.  She inferred that the defendant had murdered Mr Armstrong some hours before.  She said that she had known that they had all gone camping that day because “the guys had told me they were going camping then”.
35. [35]
    The first time that Ms Messer told police of the defendant’s alleged confession was on 10 December 2012 when Ms Messer spoke to Sergeant Anderson.  It is appropriate to place her evidence in the context of Sergeant Anderson’s evidence.  He had been given the task of preparing a file for the Coroner.  He was stationed at Maryborough and over the years had spoken to Ms Messer a number of times about the matter, when he would see her in the street and say “Come and see me, if you ever want to talk to me”.  This happened three or four times over a period of years.  Shortly before 10 December 2012, Sergeant Anderson ran into Ms Messer and made arrangements to meet.  On earlier occasions she had said she could not provide any further assistance.  They met on 10 December 2012 and their conversation was taped.  During the conversation Ms Messer raised the topic of the reward and said she was not telling Sergeant Anderson about the defendant shooting Mr Armstrong because she wanted the reward. 
36. [36]
    No formal statement was taken by Sergeant Anderson in December 2012.  A further statement was not taken from her until 26 April 2018. 
37. [37]
    In her evidence Ms Messer explained why she decided to say what she did on 10 December 2012.  She said that Sergeant Anderson had asked her about the matter on numerous occasions and that she had told him that she could not be of further assistance.  She thought that this questioning was not going to stop and that the police were “just gonna keep on coming and coming and coming and coming”.
38. [38]
    Ms Messer was cross-examined about the things that she told the QCC on 26 April 2001.  She told the QCC many things about her involvement in drugs.  She also was asked at the QCC about when she first heard what might have happened to Mr Armstrong.  She told the QCC that she “heard it on the grapevine”.  She referred to someone called Terry, who elsewhere in the evidence was described as Terry the Painter, who at the time was spreading a rumour about the defendant and others. 
39. [39]
    Ms Messer told the QCC that it was just a rumour and that “gossip started to come out that Boyd, Critter, Josefski, Les and Laurie went out camping” with the object “to let Greg [Armstrong] know Boyd was debt-collecting for somebody”, that Greg taunted Boyd and “Boyd was off his rocker”.  She told the QCC that that was what Les had told her and that she had also heard this rumour.  Her evidence to the QCC suggests that she heard the rumour first and later was told the same thing by Les Ryan.  However, in her evidence, she said that it was “more than a rumour because I already knew firsthand”.
40. [40]
    This is inconsistent with her evidence to the QCC.  She told the QCC that she did not really know from whom she heard the rumour and that it was “just a rumour”.
41. [41]
    In her evidence in this trial, she rejected the suggestion that Les Ryan had not said those things to her.  She could not say at what time of day Ryan had told her these things.  He just turned up at her house.  She had told the QCC in 2001 that the conversation with Ryan happened when she was sitting in her lounge room while stoned on heroin, and that she and Ryan were talking about the defendant having gone up north, got in trouble and been arrested.  She accepted in her evidence at this trial that the conversation with Ryan happened after the defendant was arrested in Mackay.  However, shortly after accepting that proposition, she said that Les Ryan told her what happened in the same 48 hour period or 24 hour period that she saw the defendant.  She also said that Ryan turned up later on in the day that the defendant had told her what happened.  She accepted that there was an inconsistency between this evidence and what she told the QCC about the timing of her conversation with Ryan.  She said that “the timing of it has always been a miscalculation in my head, like I just tried to explain, and the police have been aware of that right from the very beginning”.
42. [42]
    In her evidence to the QCC, Ms Messer had acknowledged that it was possible that what Ryan had told her was conveying a rumour and that he was not actually present.  She told the QCC that there was a rumour and for all she knew what Les told her could have been a rumour too.  She told the QCC that what Ryan told her might have been “bullshit”.  However, in her evidence at this trial she said that it was not and that she did not think it was a rumour.  She explained her evidence to the QCC as follows:

“I’ve always tried to somehow limit my involvement in it and limit anyone else’s involvement with it.  You know what I mean?

…

I shouldn’t have lied.  Look, I shouldn’t have lied in the – what is it – the coronial whatever you call it – CJC – whatever you’re calling it – but I did.  It doesn’t mean I’m lying now.  I just tried to limit the damage, I suppose.”

43. [43]
    Ms Messer also told police of another occasion that the defendant came to her house.  She remembered that when talking about Mr Armstrong’s body, “Boyd told me that pigs eat through the bone”.
44. [44]
    Ms Messer was cross-examined about the defendant’s appearance on the first night when he turned up at her home.  She said that he always looked dishevelled but was “more dishevelled” that night.  She said that he had wet hair and that he told her that he had “swum the river”. 
45. [45]
    Ms Messer was cross-examined about conversations that she had had with Mr Terry Bristow many years ago.  Mr Bristow gave evidence about his recollection of these conversations.  According to Mr Bristow, Ms Messer had said to him that two people came to her house one night.  She may have said that they were covered in blood.  In any event, Mr Bristow’s evidence is that she said that they had blood on them and that when she asked them what had happened they told her that they had been with the defendant and Greg Armstrong.  Ms Messer denied having said these things to Mr Bristow.  She said that she had never said that someone had come to her house covered in blood or anything like that.  In her statement of 29 November 2000, Ms Messer said that she had confided in Mr Bristow on a number of occasions about these matters.
46. [46]
    Ms Messer attempted to explain in her evidence her reasons for not telling police and the QCC all that she knew and for lying under oath.  She said that she did not tell police anything about the defendant’s confession until years after the event in order to limit her involvement and “just to limit the police asking me questions”.  She said that she told the QCC at the end of her examination that there was no further information that she had which had a bearing on the disappearance and possible murder of Mr Armstrong because, although she definitely knew more, she did not want to be there and did not appreciate the consequences of lying under oath. 
47. [47]
    In giving these explanations she did not nominate fear of the defendant.  Her explanation was that if she did not tell the police anything more they would “just stop coming and harassing me”.  However, in her witness statement of 26 April 2018, she had said the reason she had not provided the important additional information which she told police on 26 April 2018 or at any time before that was that she was scared to.  She said she was “afraid to come forward at the time as I am afraid of Boyd Carmichael”.  When asked again why she did not give a full account of things back in 1997 after Mr Carmichael was arrested and in prison, Ms Messer told this Court that she “always had a slight fear, okay, that something could happen”.  She said that she always had “a slight apprehension”.
48. [48]
    She gave evidence that Mr Carmichael had contacted her indirectly not long after he went into jail, whereas she had told police that he had contacted her through somebody else after he got out of jail.  She explained this difference about when he contacted her indirectly on the basis that she must not have heard the police question properly, and confirmed that the only time that he had contacted her indirectly was when he first went into jail.
49. [49]
    Ms Messer was cross-examined about different versions she had given to police about the defendant’s appearance when he turned up at her home.  Her evidence at this trial was that his hair was “slightly damp”, and she could not tell whether the clothes that he had were wet or dry.  She could not remember if it had been raining that night.
50. [50]
    As for the clothes that were left with her, she recalled that it was Yvette McKillop who came around and got the clothes.  She also recalled that Ms McKillop had told her of an occasion when the defendant had turned up at Ms McKillop’s place with wet clothes.  However, she had given different evidence about this at the committal when she denied having spoken to Ms McKillop and being told that Mr Carmichael had turned up to Ms McKillop’s place in wet clothes.

Re-examination of Ms Messer

51. [51]
    In her re-examination, Ms Messer described her drug use in 1997 as “pretty prolific”.  She said that she was using at least two grams of amphetamine a day and also using small amounts of heroin each day.  In later years her usage had waned and had slowed down or stopped when she moved “up north” in around 2000.  She said that by the time she gave her first statement on 20 August 1998 she was using “very randomly”.  By the time she gave her further statement on 29 November 2000 she was still a regular user.  By the time of the interview with Sergeant Anderson in 2012 she was using less again.  By the time she spoke to Sergeant Ackery on 26 April 2018 she was not using drugs, although in 2018 she was “busted” with a bag of amphetamine in her handbag that she said belonged to someone else.  She said she had stopped using because she had a serious heart condition and only used low dose painkillers. 
52. [52]
    As to her conversation with Terry Bristow, she could not recall what she said to him about the defendant and Les Ryan, but that Mr Bristow kept asking her questions.

Assessment of the evidence of Ms Messer

53. [53]
    Ms Messer’s evidence of conversations and events was, at best, confused.  She had an unreliable recollection of events, for example, of when she spoke to Mr Ryan about the alleged murder of Mr Armstrong.  Even accepting the passage of time on recollections, this was an extremely important conversation.  Ms Messer could not recall whether it happened within a day or two of the alleged confession by the defendant or some months later when he was in prison in North Queensland. 
54. [54]
    Ms Messer’s recollection of conversations which allegedly occurred in 1997 has been affected by many things, including rumours which spread around Maryborough in 1997 and persisted, her prolific drug use at the time, and evolving recollections to police and the QCC.  Because of her poor general recollection and the passage of time, I have little confidence that she had the kind of conversation which she has recalled having with Mr Ryan in which he allegedly gave an account of witnessing the defendant shoot Mr Armstrong at the Jew Hole.  If she had a conversation with Mr Ryan about that topic in around May, June, July or August 1997, then that conversation was, on her account, a conversation when she and Mr Ryan had been consuming heroin, and rumours were circulating around Maryborough about such a scenario.  It is entirely possible that Mr Ryan spoke to her about those rumours which implicated the defendant, Mr Ryan and others, and did not give his own account of such an event.  Ms Messer, in her drug-affected state, might easily have misunderstood what he was saying. 
55. [55]
    I accept that it is possible that a drug user, even a heavy drug user or addict, can have a reliable recollection of an important event or conversation.  However, the matters which affect the reliability of Ms Messer’s recollection of the conversations and events extend beyond her prolific drug use in 1997.  Her drug use continued over the following years.  She gave inconsistent accounts of matters to different individuals.  She sought to limit what she told to police for different reasons. 
56. [56]
    Another factor affecting the reliability of Ms Messer’s evidence is her delay in providing a statement to police, by which time recollections are likely to have been reconstructed and affected by hearing accounts and rumours.  As was observed in the context of civil proceedings in which individuals are asked to give a recollection of a conversation:

“… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said.  All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed.  All this is a matter of ordinary human experience.”^[11]

57. [57]
    I conclude that Ms Messer is an unreliable historian of the events and conversations in 1997.
58. [58]
    As to her credibility, she has admitted lying to police and to having lied on oath. 
59. [59]
    I accept that on occasions a witness may give truthful evidence, whilst having admitted to lying about the same subject on a previous occasion, even lying on oath.  However, the credibility of someone who admits to having lied on oath comes under a cloud, and that cloud will not be lifted in the absence of a convincing reason as to why the individual previously lied on oath.  Ms Messer’s explanations were not convincing. 
60. [60]
    Even if she was more fearful of the defendant than the “slight fear” or “slight apprehension” of which she spoke in her evidence, and was very afraid of him, she did not give a satisfactory explanation as to why she delayed in recounting the alleged confession until he came out of jail, rather than disclose those matters to police when he was in jail and had less opportunity to harm her. 
61. [61]
    If Ms Messer is to be believed, then she told Sergeant Anderson in December 2012 about the alleged confession because police would not give up.  However, she was not the subject of persistent police questioning.  He spoke to her three or four times over a number of years.  In any case, if she told Sergeant Anderson matters in 2012 because she was tired of being asked things by police, then it suggests that she told police the things that she thought they wanted to hear.  If, as she says, the defendant had been a friend and she did not want to inform on him (or to use her words, be a “dog”), then she might simply have told Sergeant Anderson that she still had nothing to add.  If she was truly afraid of the defendant then she also would have not told police of his alleged confession. 
62. [62]
    It seems likely that by 2012 Ms Messer had trouble distinguishing between conversations which she had in 1997 and reconstructions.
63. [63]
    Overall, when hearing Ms Messer’s evidence, I had serious reservations about the credibility and reliability of her evidence in general and of the defendant’s alleged confession to her in particular.

Other witnesses

64. [64]
    By way of general observation, the evidence of other witnesses did little to retrieve or rescue the evidence of Ms Messer.  In fact, the evidence of other witnesses reinforced my reservations about relying upon her evidence.

Donna Yvette McKillop

65. [65]
    In 1997, Ms McKillop, her two children and her partner, Lyle Foster, were living in Maryborough about four or five houses away from the defendant.  A friendship developed because they had children at the same school who played together.  The defendant would visit the home of Mr Foster and Ms McKillop on social occasions, and also when he became “stressed out at his girlfriend” and they would try to calm him down. 
66. [66]
    Ms McKillop recalled an occasion in 1997 when the defendant came to her home.  Lyle was already in bed or did not want to speak to anybody.  It was probably between 10 and 11 pm.  The defendant asked whether Lyle was there and asked whether he could borrow some clothing because he was wet.  Ms McKillop cannot now recall if it was raining that night.  In any case, she obtained a pair of tracksuit pants and a jumper for the defendant to borrow.  He left a spray jacket and a pair of black jeans.  Ms McKillop gave the clothes a quick wash in the washing machine and hung them out to dry.  Subsequently there was a discussion with the defendant about getting Lyle’s clothes back.  The defendant retrieved the jeans but he left the jacket.  Eventually Ms McKillop gave the jacket to the police in Maryborough.  A photograph of it became Exhibit 1. 
67. [67]
    Ms McKillop’s recollection is that on the night in question the defendant said that he had been at a party at Bidwill and he could not get a lift back into town so he had to swim the river to get back. 
68. [68]
    Ms McKillop gave evidence of another occasion when the defendant came over.  This time he wanted to speak to Lyle and did so.  Ms McKillop was not a party to the conversation that occurred between the defendant and Lyle.
69. [69]
    Ms McKillop’s evidence-in-chief was that the occasion when the defendant arrived at her home and asked to borrow some clothing because his clothing was wet was around May 1997, and she thought it was before the Maryborough Show.  She conceded under cross-examination that it could have been after the Show but she did not think so.  She accepted that in her first police statement 15 October 2018 she did not include any reference to the defendant having said he swam the river.  She also accepts that she told police that the episode in question could have been between the Show and Christmas, and that she thought it had been raining.  This was recorded in a police running sheet dated 31 March 1998.  It was only in a statement dated 9 December 2018 that she said anything about swimming the river. 
70. [70]
    However, she told the QCC in 2000 that it happened some time after the incident with the clothes, possibly as long as two months after that incident.  In her evidence she thought that the conversation the defendant had with Lyle about having done something stupid or silly was before the Maryborough Show because she had not taken her children to the Show at that stage.
71. [71]
    Ms McKillop’s evidence was that the defendant did not appear to be on drugs on the occasion that he came to her home when wet and that he did not appear to be unusually stressed.
72. [72]
    It was put to her that the defendant did not say that he had swum across the Mary River.  She maintained that he did.  Her statement dated 9 December 2018 noted that it seemed odd to her that he had, given his condition and the fact that he did not have any mud on him.
73. [73]
    I considered Ms McKillop to be an honest witness who was doing her best to recall events.  Clearly there was an occasion when the defendant came to her home when his jeans were wet, but as Ms McKillop accepted, he was not dripping wet.  His condition was consistent with having been in the rain.  It is possible that he gave some strange story about swimming across the river and Ms McKillop did not recall this when she spoke to police in 1998 or even when she gave a police statement on 15 October 2018.  Ms McKillop’s strong belief that the visit happened before the Maryborough Show and in May is hard to reconcile with her inability to place a time on this event when she spoke to police in 1998.
74. [74]
    Ms McKillop knew Ms Messer at the time.  She knew her from the school.  It is possible that Ms McKillop or someone else told Ms Messer about the occasion when the defendant turned up at Ms McKillop’s home wet and left some clothes there.  Ms Messer may have imported some of this story into her recollection of the defendant visiting her home and leaving clothes there.
75. [75]
    Contrary to Ms Messer’s recollection, Ms McKillop said there was no occasion when she retrieved the defendant’s clothes from Ms Messer’s house.

Lyle James Foster

76. [76]
    Mr Foster recalled a particular occasion when he had a discussion with the defendant at Mr Foster’s home.  They went together into a room which was used as a walk-in wardrobe and recreational space by Mr Foster.  According to Mr Foster, the defendant seemed to be on edge and said that he had done something “really bad”.  Mr Foster told the defendant that he could tell him if he wanted to, but the defendant lowered his arms and said “No it’s alright”. 
77. [77]
    Mr Foster could not be sure when this conversation happened.  Initially in his evidence he thought that it could have been only a few days after the defendant had borrowed a jumper from Ms McKillop.  However, he had given evidence at the committal that it could have been several weeks or months after Mr Armstrong went missing.  Mr Foster’s evidence at the committal was that it could have been any time and that for all he knew, the defendant “could have kicked a cat”.  By this he meant that the defendant did not really say what he had done bad.
78. [78]
    Mr Foster’s evidence, in combination with the evidence of Ms McKillop, does not permit a firm conclusion to be drawn about when the conversation between the defendant and Mr Foster occurred.  The conversation is not particularly probative of the defendant having admitted to a serious crime, let alone the crime with which he is charged.  It lends a little support to Ms Messer’s evidence of having received the alleged confession.

Paul Richard Bourke

79. [79]
    In 1997 Mr Bourke was working as a timber cutter in a pine forest.  He came to meet the defendant and the defendant worked for him for a couple of months.  Mr Bourke’s work then came to an end.
80. [80]
    Mr Bourke is a devout Christian who likes to tell others of his faith and convert them to Christianity.  His evidence was that there were several times when he worked with the defendant when the opportunity came up to express his faith.  In at least one such conversation they were talking about forgiveness.  In similar conversations individuals often asked Mr Bourke where God draws the line.  Mr Bourke recalled an occasion when the defendant asked him something like “Does he forgive paedophiles?  Does he forgive rapists?  What about if you killed somebody; would he forgive you for that?”  Mr Bourke responded to the question and explained that, in his belief, there was only one sin that was unpardonable and that was blasphemy against the Holy Spirit.
81. [81]
    Mr Bourke confirmed under cross-examination that many individuals with whom he has had similar conversations ask questions about the breadth of God’s forgiveness and ask “Does he forgive for murder?”
82. [82]
    Accordingly, the defendant’s question of Mr Bourke is unremarkable and I do not construe it as any implied admission of having killed anyone.  Mr Bourke did not interpret it as suggesting that the defendant had done such a thing in the past.  It was an inquiry about what might happen in the future. 

Larney Joy Tobin

83. [83]
    Ms Tobin, who was known as Larney Hancock at the time, knew Mr Armstrong when he lived in Maryborough in early 1997.  She attended his 30^th birthday party on 2 May 1997.  Mr Armstrong was upset that a band did not turn up to the party.  At around that time he had sold his white utility and was riding around town on an old black pushbike.  The last time Ms Tobin saw Mr Armstrong was in the week after the birthday party.  He seemed normal.

Laurie Peter Canavan

84. [84]
    Mr Canavan is the son of Alfred Peter (“Critter”) Canavan.  He came from Melbourne to live with his father in Maryborough in late 1996 or possibly early 1997.  He was aged 15 at the time.  He met Mr Armstrong who would visit the Canavan house fairly frequently.  Laurie Canavan also came to meet the defendant.  The defendant and Critter Canavan used drugs and drank together.
85. [85]
    I should record, and direct myself concerning propensity evidence, that Laurie Canavan gave evidence that the defendant was a very violent person, was mentally unstable and high on drugs most of the time. 
86. [86]
    Mr Canavan recalled an occasion when the defendant came around to the Canavan house in what seemed to be some kind of state of shock, with his head down, as if he had done something wrong.  The defendant spoke to “Critter” in the hallway and said “What have I done?”  Critter Canavan and the defendant then went into the kitchen area and spoke.  Mr Canavan was left in another part of the house and did not hear their conversation.
87. [87]
    Under cross-examination, Mr Canavan thought that the conversation in question occurred after Mr Armstrong went missing but could not say when.  He thought it was within weeks before the defendant went to Mackay.  Mr Canavan had given evidence to a QCC hearing in 2001 about the episode and when it could have been.  His evidence at that time was that the conversation could have been within a month or two, or even the night before the defendant went to Mackay.  However, Mr Canavan said that he was not in a good frame of mind at the time that he gave evidence to the QCC.
88. [88]
    As to rumours that were circulating in Maryborough after the disappearance of Mr Armstrong, and the contents of the alleged confession in particular, Mr Laurie Canavan’s evidence was that there was no occasion when he was with the people in question at the Jew Hole.  He knew nothing about any such occasion and if he did he would have told the police. 
89. [89]
    I accept his evidence that he was never present on such an occasion.  I also accept his evidence that if he had witnessed the defendant killing Mr Armstrong he would have told police about it.  This is because Mr Laurie Canavan was friendly with Mr Armstrong.  Also, I accept his evidence that he would not have been scared of telling police what he knew because within a few months the defendant was in jail and remained in jail for a long time.
90. [90]
    Mr Laurie Canavan’s evidence that he heard the defendant say on one occasion to Mr Canavan’s father “What have I done?” does not necessarily amount to an admission to unlawful killing.  It is consistent with the admission being to that offence but also consistent with a wide range of bad conduct.
91. [91]
    As Mr Canavan said, the defendant was a violent person at the time, often high on drugs.  The parties admit that when he was living in Maryborough in 1997 the defendant offered his services to, and would on occasions, collect drug debts on behalf of others.  There was evidence from other witnesses about the defendant getting into fights at hotels.  The “What have I done?” statement to Critter Canavan is consistent with a variety of wrongdoing, including some misadventure in the drug trade or some act of violence towards someone other than Mr Armstrong.  The evidence of Critter Canavan suggests that it was referable to an occasion when the defendant punched someone in the head at the pub and knocked them out.

Alfred Peter (Critter) Canavan

92. [92]
    It is convenient to refer on occasions to Alfred Peter Canavan as others did in their evidence as Critter Canavan. 
93. [93]
    In 1997 Mr Canavan was living in Maryborough with his son Laurie.  He had known Greg Armstrong for about five years.  He had met him through Mr Canavan’s brother, and would see him on a regular basis when Mr Armstrong would visit the Canavan home. 
94. [94]
    Mr Canavan also knew the defendant.  He was introduced to him by Mr Canavan’s brother, Michael.  Michael had come to Maryborough after getting out of prison in Melbourne.  He had a fight with the defendant in a pub.  About two days after the fight the defendant came around to the Canavan house to see Michael and they made up and became “friends, sort of”.
95. [95]
    His evidence at the trial focused on two conversations which he had with the defendant after Mr Armstrong went missing.  On both occasions the defendant was in a distressed state.  Mr Canavan’s recollection is that they occurred a while after Mr Armstrong had gone missing.  By “a while” he meant that it would have been months because the police had questioned him long before that.  It was some time before the defendant went up north, but Mr Canavan could not say how long before.  He did, however, say that he did not see the defendant again.
96. [96]
    The first relevant conversation related to an occasion after Mr Canavan heard a rumour or allegation, sourced to “Terry the Painter”.  According to Mr Canavan, Terry the Painter had been going around saying that the defendant had killed Greg Armstrong.  Mr Canavan went around to the defendant’s place and “fronted him”.  He asked:

“Did you kill Greg?  Because the Painter’s saying that you did it”.

97. [97]
    I will return to Mr Canavan’s evidence in this trial and his evidence before the QCC in 2001 about the defendant’s reaction to this.
98. [98]
    The second, and later conversation was an occasion when the defendant turned up on the front porch of the Canavan residence in a distressed state and said something like “I hit your mate and his eyes rolled in the back of his head”.  Mr Canavan says that the defendant was fairly incoherent and he asked “What are you going on about?”  Mr Canavan then found out that the defendant had been in a fight at the Tatts Hotel with an individual, who was described in the evidence as Mick Kann’s cousin.
99. [99]
    I return to the first conversation.  In his evidence-in-chief Mr Canavan said that when he asked the defendant “Did you kill Greg?  Because the Painter’s saying that you did it”, that he does not now know whether the defendant said “No”, or “he’s looked across at Michelle and that”.  According to Mr Canavan, he then said to the defendant, “Well, you want to go and see him because, you know, he’s saying that you did it.”  Mr Canavan then went home.  Mr Canavan said that he did not really suspect the defendant of having killed Mr Armstrong.
100. [100]
     In his cross-examination, Mr Canavan said that he could not remember the exact words that were used in the conversation.  He recalls that the defendant “just looked across at Michelle” (the defendant’s partner at the time) and that Mr Canavan said:

“Well, mate, the Painter’s saying you did it.  If you didn’t do it, you want to go and see him.”

Mr Canavan conceded under cross-examination that it is possible that the defendant said “No.  Who’s been telling you that?”

101. [101]
     When it was put to Mr Canavan that in the course of the conversation he gained the impression that the defendant was declaring his innocence, Mr Canavan responded “No.  I don’t think – he didn’t answer me”.
102. [102]
     Mr Canavan was taken to the evidence that he had given at a QCC hearing in 2001.  On that occasion Mr Canavan gave evidence that after he asked the defendant about the rumour to see the defendant’s reaction, the defendant just said “What?” and started screaming and his girlfriend Michelle kept on saying “that and that”.  He told the QCC that he had his doubts about the defendant because the defendant did not show the expression that a person would have if he was getting blamed for something.  According to Mr Canavan, the defendant did not give the reaction that might have been expected and he just went “What?”, and then Michelle “started screaming and yelling, more trouble, rah rah rah”.
103. [103]
     It is apparent that Mr Canavan’s evidence to the QCC about the defendant’s reaction was not very clear because the questioner said he was not sure whether the effect of Mr Canavan’s evidence was that he was saying that the defendant reacted in a way that a person who is guilty would react or the other way around.  When asked by the questioner:

“Are you saying his reaction gave you the impression that he was, in fact, innocent?”

Mr Canavan answered:

“Yes, that’s what I thought”.

104. [104]
     In his evidence at this trial, Mr Canavan accepted that that is what he said to the QCC, but added that there were so many questions over the one thing that he “got a bit muddled up there”. 
105. [105]
     The cross-examination at this trial also explored the second conversation, which occurred when the defendant came to Mr Canavan’s home and they went out on the back patio.  According to Mr Canavan this conversation occurred not long before the defendant left for Mackay: it could have been a month or two before he did so.  According to Mr Canavan he asked the defendant “What’s wrong?”  The defendant was mumbling and Mr Canavan understood him to say:

“I hit your mate and his eyes rolled in the back of his head when he went back”.

106. [106]
     On this occasion, like the occasion at the defendant’s house, the defendant was in a distressed state.  Mr Canavan thought that on both occasions he had used too many drugs or was hanging out for drugs or something like that.  Mr Canavan also said that the defendant was “really stressed out” and that he did not feel comfortable with him there.
107. [107]
     The statement about hitting a mate whose eyes rolled in the back of his head when he went back made Mr Canavan think of a fight that the defendant had with Mick Kann’s cousin at the Tatts Hotel.  People were talking about the fight and saying how Mick Kann’s cousin’s eyes rolled in the back of his head.  According to Mr Canavan, it was only a short time before this conversation that he had become aware that the defendant had been in a fight with a person named Kann at the hotel.  The person involved in the fight, Stephen Kann, was not Mr Canavan’s mate.  As a result, Mr Canavan could not understand why the defendant said to him that he was Mr Canavan’s mate.  However, Mr Canavan knew Mick Kann.
108. [108]
     Based on Mr Canavan’s evidence, it seems that the defendant did not identify by name or otherwise who he had hit and whose eyes rolled in the back of his head.  Mr Canavan inferred, either at the time or shortly after, that he was talking about the person named Kann with whom the defendant had been in a fight at the hotel.
109. [109]
     I conclude that this conversation probably occurred on the same night as the night Laurie Canavan recalls the defendant coming to the home and saying “What have I done?”  The words that Laurie Canavan heard are consistent with an admission to wrongdoing and, taken on their own, are consistent with an admission to the offence charged.  They are equally consistent with an admission to a wide variety of misconduct, including the fist fight at the Tatts Hotel at which the defendant apparently knocked out an individual named Kann.
110. [110]
     As to the previous conversation, the defendant’s angry and apparently odd reaction to the reported rumour that he had murdered Mr Armstrong is capable of a number of interpretations.  Mr Canavan does not have a clear recollection of the defendant making an emphatic denial.  His failure to make a clear and emphatic denial is capable of amounting to an implied admission.  However, his reaction is also capable of being interpreted as the angry reaction of someone who was emotionally unstable, a drug addict who was on drugs or desperate for drugs at the time and who, instead of making a clear denial, simply yelled out “What?”  This was not a case of an implied admission by silence.
111. [111]
     Mr Canavan’s recollection of this exchange was understandably poor, coming more than 23 years after the events in question.  His earlier evidence at the QCC suggests that Mr Canavan may have interpreted the defendant’s reaction at the time as consistent with protesting his innocence.  His recollection now and the recollection given to the QCC in 2001 consist of recollections, well after the event, of a conversation with an emotionally unstable drug addict who was being accused of murder.  If one was to rely upon Mr Canavan’s evidence as reliable evidence that the defendant did not react in the way a normal person who was accused of murder would, then it may be that the defendant’s reaction is explained by the fact that he was not a normal person.  He was an emotionally unstable drug addict.  However, the evidence, particularly Mr Canavan’s evidence to the QCC, leaves open the possibility that the defendant’s reaction left Mr Canavan with the impression that the defendant was claiming to be innocent.
112. [112]
     I do not find that Mr Canavan’s evidence of either conversation amounts to an admission by the defendant of wrongdoing in respect of Mr Armstrong.
113. [113]
     Mr Canavan denied being present on any occasion when the defendant shot Mr Armstrong.  He said that the suggestion that he, his son, Jofeski and Ryan were present and witnessed the defendant shoot Mr Armstrong was not true.  Mr Canavan said that he had heard rumours that the group was supposed to have gone fishing and camping.  However, this never happened.  The individuals in question were always talking about going camping but that never happened.

Terrence Edward Bristow

114. [114]
     In 1997, Mr Bristow, who had the nickname Sharman, worked as the head of security and on the front door of a nightclub at a hotel in Maryborough.  In that role he came to know people, including the defendant and Ms Messer.  He did not know the defendant very well, but enough to say hello to him in the street and to occasionally talk to him outside the nightclub.
115. [115]
     Mr Bristow knew Ms Messer because she used to come to the club and was a known drug addict.  They would converse.  I infer that Mr Bristow had a low opinion of her.  Sometimes she would confide things in him.  On one occasion she mentioned something about the disappearance of Greg Armstrong.  She came back a few days later and Mr Bristow sat down with her and she told him a story. 
116. [116]
     She said that two people had come to her house and that they had blood on them.  According to this account they had been out in the bush with the defendant to give Mr Armstrong a scare because he owed the defendant some money.  According to Mr Bristow, Ms Messer said that this happened at a forestry near the Cod Hole.  She said that they beat up Mr Armstrong and that the defendant shot him.  Mr Bristow could not be sure whether Ms Messer had said that the defendant had shot Mr Armstrong or whether she said that he killed him.  He accepted that his witness statement which was taken by two detectives used the word “shot” and said that there were some slight discrepancies between what he said and what appeared in the statement that was given to him a month after the interview.  Mr Bristow accepted that he could well have used the word “shot”. 
117. [117]
     Mr Bristow said that Ms Messer told him that after Mr Armstrong was killed, the two people who came to her home and the defendant stripped Mr Armstrong and burned his clothing.  According to this recollection of what she said, they also built a fire and placed Mr Armstrong’s body on the fire.  The two individuals who came to her home made an excuse to leave and left the defendant there to clean up.  The story went along the lines that the defendant wanted to do some dismembering but the other two were not interested in that, were frightened and just wanted to get out of the place.
118. [118]
     According to Mr Bristow’s recollection of Ms Messer’s story, she then saw the defendant at about 3 am and when he arrived at her place he was covered in dried blood.  She told Mr Bristow that the defendant removed his clothing and burnt it, had a shower and cleaned himself up.
119. [119]
     As previously noted, Ms Messer in her evidence denied telling Mr Bristow such a version of events.  There are clear inconsistencies between the evidence of Ms Messer and the evidence of Mr Bristow.  Both their accounts are affected by the passage of time and are therefore likely to be unreliable on points of detail.
120. [120]
     I accept that Ms Messer spoke to Mr Bristow about the disappearance and death of Mr Armstrong.  I consider that Mr Bristow’s recollection of their conversation is likely to be more reliable than that of Ms Messer.  Ms Messer was a generally unreliable historian and has given many versions of events over the years.  I doubt whether she has a very reliable recollection of what she told Mr Bristow.  As for Mr Bristow’s recollection, I infer that he had a jaundiced view at the time of Ms Messer and the reliability of her story.  However, I think it likely that he was able to recall the essential details of the story.  The story would be memorable.
121. [121]
     There are marked inconsistencies between the version of events which Ms Messer told Mr Bristow and the version of events which she gave in evidence.  The proposition that two people involved in the events came to her house with blood on them and that later that night and at around 3 am the defendant turned up at her house is inconsistent with her account of the defendant being the only person who visited her house that night.  The additional details about what happened to Mr Armstrong’s body do not appear in any previous statement.  The story of the defendant having blood on his clothes and burning the clothes does not feature in the accounts which she gave to police, to the QCC or at this trial.
122. [122]
     I will return to the parties’ submissions about the extent to which the evidence of Mr Bristow supports or detracts from the credibility and reliability of Ms Messer’s evidence.

Leslie Darren Ryan

123. [123]
     At the beginning of 1997 Mr Ryan got out of jail and went to live in Maryborough.  He met up with Shane Josefski and met Critter Canavan.  Mr Canavan let Mr Ryan stay at the Canavan home at Maryborough, after which Mr Ryan moved into his own home.
124. [124]
     Mr Ryan did not know Mr Armstrong but had seen him on a few occasions.
125. [125]
     Eventually Mr Ryan met the defendant.  This group used to drink at the Tattersalls Hotel.  Mr Ryan did not socialise with the defendant very much but went to his place to get drugs, either amphetamine or heroin if he could.
126. [126]
     Mr Ryan also knew Ms Messer.  They “hung out” together and shared drugs.  If he could get hold of some heroin he would go and see her and “shout her a hit”.
127. [127]
     Mr Ryan denied that on any occasion he told Ms Messer that he, Josefski, Critter Canavan, Critter’s son and the defendant took Mr Armstrong out to the Jew Hole and were present when the defendant shot Mr Armstrong.  He denied saying anything like this even when he was under the influence of drugs.  His evidence was that these things were not true.
128. [128]
     Mr Ryan also said that if he had made a statement of the kind suggested he would surely remember it but that such a thing just never happened.

The defendant neither gave nor called evidence.

129. [129]
     As was his right, the defendant chose not to give or call evidence.  I remind myself that this does not alter the burden on the prosecution.  The fact that he did not give evidence is not evidence against him.  It proves nothing.

Overview of the evidence

130. [130]
     I am required to determine the credibility and reliability of each witness.  I have done so, having regard to the impression which they gave when giving evidence, the manner in which they gave it, their apparent ability to recall matters of substance, when they were first asked to recall a matter and the consistency or otherwise of the evidence which they gave with statements that they may have made at an earlier time.  Having made a provisional assessment of the credibility and reliability of each witness at the time they gave their evidence, I have considered my assessments in the light of other evidence given by witnesses, the documents tendered as exhibits and the admissions. 
131. [131]
     I have also had regard to the submissions made concerning the evidence of the witnesses, including their consistency or otherwise with the evidence of Ms Messer.
132. [132]
     I have considered the reasons which particular witnesses may have had to tell the truth or to conceal the truth.  For example, if Mr Ryan or Critter Canavan was present at the Jew Hole with the defendant and Mr Armstrong when the defendant was seeking to recover a drug debt, and witnessed the defendant kill Mr Armstrong, then it is unlikely that they would admit their presence at such an episode.  This would be so even if they were not exposed to the risk of prosecution for being party to an unlawful killing because the shooting was unexpected and they had no pre-arranged plan with the defendant.  The fact that they concealed matters in 1997 and did not perform their civic duty in reporting a crime might be a reason why they would continue to deny having been at the scene of the crime.
133. [133]
     That said, the existence of a reason to conceal their presence at the time and place Mr Armstrong was killed does not mean that I should assume that they were present and that the alleged confession to Ms Messer was made and that it is true.
134. [134]
     In assessing the credibility of Critter Canavan’s evidence I take account of the possibility that he invented the story about the second conversation with the defendant being about the occasion when the defendant knocked out Mr Kann.  As against that, if Mr Canavan wanted to assist the defendant, and to deflect investigation into a crime at which he was present, he would have given a different account of the first conversation.  He would have said that the defendant clearly protested his innocence and denied the allegation when he confronted the defendant at his home about the alleged killing.

Robinson direction

135. [135]
     The Crown accepts that a “Robinson” warning is appropriate in relation to the evidence of Ms Messer.  I need to scrutinise her evidence with great care before I can arrive at a conclusion of guilt based upon it.  The reasons for this are many and include:

     1. (a)
        the delay between the time of the alleged events and conversations and the giving of evidence by Ms Messer more than 23 years later;
     2. (b)
        the differences between accounts given by Ms Messer;
     3. (c)
        the fact that in earlier accounts she denied that the defendant had confessed to her;
     4. (d)
        the fact that she was a drug addict in 1997 and for a very substantial time afterwards and that her heavy drug use may have affected her perception of events and conversations and impaired her recollections; and
     5. (e)
        because she has admitted to lying to police and lying on oath about relevant matters.
136. [136]
     In the circumstances I should only act on her evidence if, after considering it with the warning that I should scrutinise it with great care, and having considered all the other evidence, I am convinced of the truth and accuracy of her allegation that the defendant confessed to her.

Adverse evidence and impermissible reasoning

137. [137]
     In the course of the trial I heard evidence about the defendant and about his past, his involvement in criminal offences, his association with people who had criminal convictions, and the fact that some months after the events in Maryborough he shot and killed a man in North Queensland, was convicted of manslaughter and was sentenced to 11 years’ imprisonment.
138. [138]
     The evidence includes the admitted fact that at and prior to the time of the alleged offending, the defendant was involved in the drug scene, would buy, sell and use drugs, as well as the admitted fact that prior to and around the time of the disappearance of Mr Armstrong he offered his services to, and would, on occasions, collect drug debts on behalf of others.  At that time he had a reputation for being physically violent and on occasions would assault persons who owed others money.  The evidence includes the evidence of Laurie Canavan that the defendant was violent and unstable. 
139. [139]
     In accordance with principles governing the permissible use of evidence of discreditable conduct, I should not illogically and unfairly jump to the conclusion that the defendant is likely to have unlawfully killed Mr Armstrong because he was involved in drug dealing, collecting drug debts, used amphetamine, was involved in acts of violence such as fights at hotels and had a violent disposition when affected by or when desperate for drugs.  Drug offences are very different offences to homicide.  Even offences of violence against people, such as assaulting people in bars or assaulting persons who owe money, are very different offences to the homicide offence that the defendant faces.
140. [140]
     I direct myself in accordance with the law that I cannot reason that because the defendant may have been involved in those criminal offences and may have consorted with other criminals, he was likely to have committed the serious offence with which he is charged.  The Crown does not seek to rely upon this evidence to support such a process of reasoning.  I do not proceed on the basis that because of bad conduct or criminal conduct prior to or at around the time of the alleged offending, the defendant is the sort of person who might, or even would, commit the serious offence with which he is charged.  I cannot reason that because he was prepared to engage in the criminal conduct which I have described, he is likely to have committed the serious offence with which he is charged.
141. [141]
     The Crown does not submit that the fact that the defendant shot and killed a man on 2 September 1997 and was ultimately convicted of manslaughter and wounding and sentenced to 11 years’ imprisonment means he is likely to have committed the offence with which he is charged.  I direct myself that I must not proceed on the basis that because the defendant subsequently unlawfully killed a man in September 1997 that he was likely to have killed Mr Armstrong.  I remind myself that the Crown does not rely upon the defendant’s commission of the offence of manslaughter as tending to prove his guilt of the offence with which he is charged.  Instead, the fact that he was arrested on 4 September 1997 and subsequently sentenced to 11 years’ imprisonment for manslaughter is relevant to the issue of whether a person such as Ms Messer would have been afraid to speak to police and implicate the defendant in the killing of Mr Armstrong, and whether that fear would have been greater or less before or after the date he was released from prison.

Consideration of evidence and submissions

142. [142]
     The Crown submits that where the alleged confession to Ms Messer “is really the only basis on which the Court could find guilt beyond reasonable doubt”, I should consider whether there is any independent evidence which would satisfy me that the confession was made.  It submits that whilst it may be dangerous to convict acting on the confessional evidence of Ms Messer alone, I may act on it if, having regard to the Robinson warning, and having scrutinised her evidence carefully, I am satisfied of its truth and accuracy.
143. [143]
     The learned Crown prosecutor argued that in assessing the credibility and reliability of witnesses, including Ms Messer, I should have regard to their living circumstances, age and vulnerability at the time.  I do so.
144. [144]
     I accept the submission that I should not reject Ms Messer’s evidence because, on different occasions when she was asked to recall matters, she omitted certain details, such as the alleged presence of Josefski.  I also accept that someone in her situation who was required to recall events and conversations well after they occurred may have difficulty in being precise about dates or even sequences.  Also, I accept the Crown submissions that the mere existence of inconsistencies is not a sufficient reason to reject the evidence of Ms Messer.  Some inconsistency is to be expected when individuals are asked on a number of different occasions to recount what happened years ago. 
145. [145]
     I should have regard to the probability or improbability that the defendant would confess to Ms Messer.  The Crown points to the fact that they were friends, and their mutual drug use and friendship meant that Ms Messer was a person who the defendant might trust and in whom he might confide in the circumstances described by her.  Their friendship is also said to explain why she did not tell the police about the confession until 2012 and still feels like “a dog” in giving evidence against him.  That friendship is said to explain why she was prepared to protect him by lying in earlier statements. 
146. [146]
     The circumstances in which the defendant allegedly confessed to Ms Messer and the contents of the alleged confession are submitted to have the “ring of truth”.  According to Ms Messer, the defendant was behaving unusually on the night that he came to her house and he only confessed some hours after being there.  There was nothing improbable in the circumstances that Ms Messer described as constituting the confession, with a confrontation at the Jew Hole and Mr Armstrong egging the defendant on and telling him to pull the trigger.  Also, the Crown points to the fact that the alleged confession was not embellished with added features which might have been expected if such a confession was being concocted.  Ms Messer did not purport to describe how the defendant and others got to the Jew Hole, when the murder happened, how the defendant had returned from the Jew Hole or what eventually happened to the body. 
147. [147]
     The Crown submits that Ms Messer gave a plausible, reasonable and truthful explanation as to why she did not mention anything about the defendant’s confession to police or the QCC.  In short, she explained that she was living the life of a drug addict and a criminal and had a lot to hide.  She finally told the authorities about the confession because of her realisation that “it just needed to end”.  In her evidence she rejected the idea that she came forward because a $250,000 reward was on offer.  She said that it had no relevance to her then or now.
148. [148]
     Ms Messer said that she had not lost her memory because of drug taking but that different events and things triggered memories. 
149. [149]
     The Crown points to the fact that her conversation with police on 10 December 2012 was not the first time that she had implicated the defendant.  She had discussed the matter with Mr Bristow.
150. [150]
     Consistent with the Robinson warning and having considered the parties’ submissions, I have regard to the extent to which other evidence, independent of Ms Messer, supports the Crown case that the defendant confessed to her and the confession is true.
151. [151]
     Mr Bristow’s evidence does not.  The version of events which Ms Messer gave to him is quite different to the one which she told police on 10 December 2012.
152. [152]
     The Crown submits that Ms McKillop’s evidence supports Ms Messer’s evidence.  I am unable to agree.  Even if one was to assume that Ms McKillop was correct in saying that the defendant came to her house in May 1997 on a date before the Show, despite her inability to give such a timeframe when she was originally interviewed by police, her evidence simply establishes that the defendant came to her home at around 10 or 11 at night and that his hair was wet.  This does not prove that he went to Ms Messer’s home the same night.  It is worth recalling that Ms Messer thought that he arrived at her house at around 7.30 pm.
153. [153]
     If it be the case that the defendant told Ms McKillop that he had been at a party at Bidwill and had to swim the river to get back into town, then this may simply have been a fantastic story which the defendant told Ms McKillop.  There were no signs such as mud which might have been expected if he swam the Mary River.  Even if he did swim across the river, the evidence of Ms McKillop does not prove that he did such a thing on the night of the alleged murder.
154. [154]
     If it be the case that the defendant was left by others at the Jew Hole after he had killed Mr Armstrong, then the defendant would have had to get himself back into town by some means or other, for example, by phoning a friend, hitching a ride or walking.  By any of these means he would have travelled back along the road or roads that linked the Jew Hole and the centre of Maryborough.  There was no apparent reason for him to swim across the Mary River.
155. [155]
     Ms McKillop’s evidence about the defendant turning up wet, claiming to have swum across the river and leaving clothes with her, does not support Ms Messer’s evidence about the circumstances in which the defendant came to her home and confessed. 
156. [156]
     It seems likely, however, that Ms McKillop at some stage told others about the defendant turning up at her place wet, having claimed to have swum across the river and leaving clothes there.  Even if she did not tell these things directly to Ms Messer, the story probably reached Ms Messer along the grapevine of rumour.  It is entirely possible that Ms Messer has factored the story into her own recollection and made the story her own.
157. [157]
     The evidence of Mr Foster of the defendant visiting his and Ms McKillop’s home a few days later, seeming to be on edge and saying that he had done something “really bad” lends some support to Ms Messer’s evidence.  However, as discussed, Mr Foster could not be sure of the time and for all he knew the defendant “could have kicked a cat”.
158. [158]
     The evidence of Mr Bourke could not be reasonably construed as an implied admission by the defendant of having killed anyone. 
159. [159]
     The evidence of Laurie Canavan establishes that the defendant was very distressed when he spoke to Mr Canavan’s father and said “What have I done?”  Depending upon the timing of that visit, such a statement may be referable to an unlawful killing.  Critter Canavan’s evidence places this episode closer to the time when the defendant left Maryborough and after rumours had been circulating about the defendant and after Mr Canavan confronted him about the matter.  Therefore, the episode seemingly did not occur shortly after the killing.
160. [160]
     Laurie Canavan’s evidence of the “What have I done?” remark has some probative value and is consistent with an implied admission to unlawful killing.  It was unlikely to be the kind of statement which the defendant would make about his day to day activities as a drug dealer and thug about town.  He seemed to have no regrets about his ordinary life of crime. 
161. [161]
     The evidence of Critter Canavan suggests that the “What have I done?” statement concerned a recent episode in which the defendant had knocked out someone who he thought was Critter Canavan’s friend.  I have some reservations about Critter Canavan’s recollection of this matter since he did not provide that context in earlier statements to police.  When he was interviewed in 2018 he initially did not recall the defendant saying something like “I hit your mate and his eyes rolled in the back of his head”.  Critter Canavan only remembered this when he thought further about it. 
162. [162]
     In short, that explanation suggests that the “What have I done?” statement in the presence of Laurie Canavan was unrelated to the alleged murder.
163. [163]
     Overall, the evidence of other witnesses lends only slight support to Ms Messer’s evidence.
164. [164]
     The essential issue remains whether I am satisfied that the defendant made the alleged confession to Ms Messer.  Because of the serious reservations which I have about the credibility and reliability of her evidence in general and of her evidence about the defendant’s alleged confession to her in particular, I am not satisfied that any such confession was made to her by the defendant. 
165. [165]
     For completeness, I should record that I am satisfied beyond reasonable doubt that Mr Armstrong is dead.  The admissions, including his disappearance without taking any personal papers, the absence of any banking transaction after 7 May 1997, his lack of contact with family and friends and the evidence in general all lead to the conclusion that Mr Armstrong probably died in May 1997.  There is insufficient reliable evidence upon which to base a conclusion as to how and when he died.  Any suggestion that he may have committed suicide is not strongly supported by the evidence.  He owed drug debts and he expected that on Monday, 5 May 1997 a carload of people from Gympie were coming to get money from him.  He may have been disappointed that he was not going to inherit $30,000 as he had expected.  However, these matters do not provide sufficient grounds to conclude that he probably committed suicide.  In addition, Ms Tobin recalls seeing him in the week after his birthday party and his mood was normal.  Generally he was a happy-go-lucky person. 
166. [166]
     The possibility exists that he died an unnatural death.  Possibilities abound as to misadventures with drugs or other activities, or a death at the hands of someone involved in the drug world.
167. [167]
     Ultimately, the Crown’s case that the defendant caused the death of Mr Armstrong, that the death was unlawful and that the defendant intended to cause Mr Armstrong at least grievous bodily harm depends upon my being satisfied that the defendant truthfully confessed to Ms Messer.  The making of the alleged confession is an essential part of the Crown case.  The Crown accepts that its circumstantial case is insufficient to secure the defendant’s conviction and that in order to convict, I must be satisfied that he confessed to Ms Messer. 
168. [168]
     I am not satisfied that any such confession was made to her by the defendant.  I certainly am not satisfied to the high degree which would be required.  I have explained the reasons why I have serious reservations about the credibility and reliability of her evidence.  I heed the warning that I should scrutinise her evidence with great care and have to be convinced of the truth and accuracy of her allegation that the defendant confessed to her.  I am far from convinced of this.
169. [169]
     The disappearance of Greg Armstrong sparked rumours in Maryborough about what had happened to him.  Those rumours included stories about the defendant and his associates going camping and fishing at the Jew Hole.  The fact that Mr Armstrong owed drug debts and the defendant’s status as a violent individual who would collect drug debts on behalf of others naturally placed the defendant under suspicion.
170. [170]
     It is possible that the suspicion that the defendant had killed Mr Armstrong became embellished with a story of how he had done so in the company of his associates at the Jew Hole.  It is also entirely possible that such a rumour, which included Les Ryan as part of the narrative, reached Mr Ryan, and he told Ms Messer about it one night when they were shooting up on heroin together.  Ms Messer was a bad drug addict at the time.  She may have misunderstood what Mr Ryan said to her when they were sharing heroin on that occasion.  He may have been telling her about a rumour and in their drug affected state she may have understood him to be giving a first-hand account of events.  At some stage she must have reflected on her conversation with Mr Ryan.  Alternatively, her recollection or reconstruction of the conversation may have led her to confuse what he had said as a first-hand account, rather than recounting a rumour.
171. [171]
     This was the version which she gave to police on 20 August 1998 in which she recounted what Les Ryan had told her.  She did not tell police that the defendant had confessed to her at around the same time.  In fact, she told police that he had never spoken to her about what had happened and that she had never let on to him that she knew what Les Ryan had told her.  If Ms Messer is to now be believed, she was lying to police when she said that the defendant had not confessed to her.
172. [172]
     Her eventual disclosure to police in 2012 of his alleged confession comes against the background of admitted lies.  As discussed, the explanations which Ms Messer gave for reporting the confession to police for the first time in 2012 are unconvincing.
173. [173]
     It is possible that the defendant turned up at her house in May 1997 in a distressed condition.  A genuine recollection by Ms Messer of him doing so may have become confused with her recollections of conversations with Mr Ryan and rumours. 
174. [174]
     It is possible that her 2012 evidence to police was her retrieving a genuine recollection of a May 1997 confession about which she had lied over the years and lied on oath.  I think it more likely that it was not a genuine recollection of an actual conversation, but a reconstructed and false recollection.
175. [175]
     For these reasons I am not satisfied that the alleged confession was made to her.  In the circumstances, the prosecution has not discharged the onus of establishing the offence charged beyond reasonable doubt.  The same problem of proof in relation to the offence of murder applies to the alternative offence of manslaughter. 
176. [176]
     The prosecution has not proven to the required standard the elements required to constitute the offence of murder or manslaughter.

Verdict

177. [177]
     Not guilty.