AFTER a judge-alone trial spanning 14 weeks and evidence from 53 witnesses, the Supreme Court of NSW last month found Tony Simmons not guilty of the murder of his one-time friend, Andrew Russell.
In handing down his verdict on May 20, Justice Peter Hamill said the evidence he heard during the trial caused him to have grave suspicions that Simmons killed Mr Russell. Justice Hamill’s published findings also revealed details of an elaborate police sting that led to Simmons’ arrest in the first place.
However, the timing of the events and the possibility Simmons was big-noting himself to undercover police officers caused Justice Hamill to have both substantial and reasonable doubt, and for these reasons he found Simmons not guilty of Mr Russell’s murder.
With the redacted verdict finally published this week, the Western Advocate looks at key features of the trial, and why Mr Russell’s parents feel let down by the judicial system.
A SUPREME Court judge’s “grave suspicions” that murder accused Tony Simmons had killed Bathurst man Andrew Russell were not enough to bring a guilty verdict in the case.
Simmons remains in jail after being found guilty of an assault on Mr Russell occasioning actual bodily harm, but the verdict in the murder trial means no-one has been convicted for Mr Russell’s death.
A co-accused, Kieran Moore, had charges of being an accessory after the fact discharged by the Director of Public Prosecutions.
The judge-alone trial before Justice Peter Hamill spanned 14 weeks and heard evidence from 53 witnesses before concluding last month.
But the judge’s lengthy findings in the case have only been published this week, providing an insight into a world few in Bathurst have encountered.
In his findings, Justice Hamill said evidence presented at the trial gave him “grave suspicions that Simmons killed Mr Russell”, but a combination of the timing of events and the significant possibility that Simmons was “big-noting himself” when he boasted about the murder to undercover police caused substantial and reasonable doubt.
In the end, Justice Hamill could only find Simmons not guilty.
DURING a sting conducted by undercover police, Simmons said he and co-accused Moore had abducted Mr Russell from the Evans Bridge that links Bathurst and Kelso on the night of June 2, 2009 and assaulted him before throwing him from a cliff.
He claimed they then retrieved Mr Russell’s body and dumped it down a mine shaft near Sofala.
When asked why, Simmons told the undercover officer that Mr Russell had “grabbed his [Simmons’] missus and spat on her”.
“So one night we [Simmons and Moore] were going across the bridge and we seen the [expletive] walkin across,” Simmons said.
He said the pair abducted Mr Russell, “dragging him into the car and bashing him”.
One of the last reported sightings of Mr Russell was by a witness who told the trial he believed he saw him at around 10.50pm on June 2 at the intersection of Littlebourne Street and the Sydney Road – not far from the Evans Bridge.
Justice Hamill conceded this evidence provided some support for the prosecution case and the Crown argued there was no coincidence.
Simmons told another undercover operative that he had to hold on to Mr Russell, who kept kicking the car door open.
When asked what Moore was saying, Simmons said at the start he thought it was funny.
“He thought it was a game. But at the end he knew it was serious – you know, so did I,” he said. “It started as a game, but once I had him I was [expletive], couldn’t let him go, you know what I mean?”
A COVERT police operation was carried out between September 18, 2012 and January 16, 2013.
It was a complex sting operation in which, on most occasions, the conversations between the undercover operative and Simm-ons were recorded by surveillance devices. It was in this context that Simmons made admissions, on three separate occasions, to Mr Russell’s murder.
To an undercover operative, Simmons said: “[expletives] always go missin’ around my area” and that after Mr Russell gave Simmons’ “missus shit”, he gave him a “touch up” and put him in hospital for a couple of weeks.
“And then a couple of weeks after [he] got out of hospital he sort of went missing .. One day they’ll find, one day they’ll find him, but I doubt it,” Simmons said.
When the undercover operative questioned Simmons further, he said: “He went on a good holiday.”
Simmons said he and Moore pushed Mr Russell off a cliff, before dropping him down a mine shaft near Sofala.
He went into detail about disposing of Mr Russell’s body and said the police had been looking for the body, but “they have no idea”.
When asked if Moore was “staunch”, Simmons replied: “He hasn’t said nothing yet, bro. And if he does it’s just his word against mine anyway.”
In another conversation, Simmons spoke about how he was “running on adrenaline” after Mr Russell was killed.
“I was thinking just get home, have a shower. After that I was right, you know what I mean. Like I didn’t even think about it anymore,” he said.
“Me mate comes over a couple of days later, he’s like [expletive], I haven’t slept.
“I said ‘why’ and he goes ‘I keep thinking about it’.
“I said ‘well, don’t think about it, bra. It’s done, you can’t change it’.”
SIMMONS was arrested by police in a hotel room on January 16, 2013, immediately after a conversation with one of the undercover operatives.
Simmons expressed surprise at his arrest and said to the arresting officers: “I was only talking shit.”
He claimed to have known he was being set up from the start.
IN reaching his conclusion, Justice Hamill said while the evidence presented at the trial caused him to have “grave suspicions that Simmons had killed Mr Russell”, there remained “substantial and reasonable doubt”.
In his judgment summary, Justice Hamill noted that a number of witnesses were found to be unreliable. He also said the most significant body of evidence in the prosecution case came from recorded conversations between Simmons and the group of undercover police officers.
Justice Hamill said there was no doubt Simmons made a series of admissions which amounted to a confession to murdering Mr Russell and dumping his body down a mine shaft.
But Justice Hamill said the real issue in the trial was whether the accused’s confession statements were reliable. Justice Hamill found they were not.
In particular, the confessions were shown to be false in a number of respects by clear and objective evidence.
Justice Hamill said the actions as described by Simmons would have involved him being out of Bathurst for many hours.
However, telephone records demonstrated that, in fact, he was in Bathurst at relevant times.
Simmons had also boasted about assaulting Mr Russell some weeks earlier.
Justice Hamill said his admissions in relation to that assault were clearly untrue.
“For instance, he told the undercover police that Mr Russell was in the intensive care for six weeks and he had several broken bones as a result of the assault,” Justice Hamill said.
“In reality, Mr Russell was treated in casualty and remained in hospital for no more than two nights. He had no broken bones at all.”
Justice Hamill said there were a number of other features of the accused’s admissions which were demonstrably false or, at least, gross exaggerations.
Justice Hamill found it was possible Simmons lied about his involvement to big-note himself with undercover operatives.
He concluded that as clever and well-executed as the undercover operation was, it also had the capacity to induce a false and unreliable confession.