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Judge acquits alleged killer based on ‘false’ witness recollection

A judge has found a man charged over the 1997 murder of Gregory John Armstrong not guilty after ruling the key prosecution witness had a “reconstructed and false recollection” of hearing the alleged killer’s confession.

Brisbane Supreme Court Justice Peter Applegarth AM yesterday found Tony Boyd Carmichael not guilty of the murder or manslaughter of Armstrong, who was last seen in Maryborough, 260km north of Brisbane – on or about 7 May 1997.

The Crown had alleged Carmichael killed Armstrong, whose body has never been found, by “deliberately shooting him in the head”.

Carmichael, who was released yesterday, has previously been convicted of the manslaughter of Michael John Rutherford, who was shot in the head at Mackay, in Central Queensland, on 2 September 1997.

Rutherford died more than a week after being shot.

During a four-day judge-alone trial, Justice Applegarth was told Carmichael allegedly shot and killed Armstrong in the presence of Shane Josefski, Laurie Canavan and Alfred Canavan at a local camping spot known as ‘Jews Hole’.

None of other three men have been charged over Armstrong’s disappearance.

Justice Applegarth, in a 39-page written decision, said the “critical witness for the prosecution” was Susan Messer.

“(Messer) is the only witness to whom (Carmichael) is alleged to have confessed to killing Mr Armstrong,” he said.

“The prosecution case depends upon acceptance of her evidence that such a confession was made. (However), her evidence was unsatisfactory.”

Messer testified Carmichael appeared troubled when he turned up to her Albert Street home in Maryborough, that they took amphetamines together and that he then confessed to Armstrong’s murder while camping with a group of friends.

Messer did not report the alleged confession to police until 2012.

In entering a not guilty verdict, Justice Applegarth found Messer’s disclosure of an alleged confession to police came “against a background of admitted lies”.

“It is possible that (Carmichael) turned up at (Messer’s) house in May 1997 in a distressed condition,” he said.

“A genuine recollection by Ms Messer of him doing so may have become confused with her recollections of conversations with (another person) and rumours (that followed after Armstrong’s disappearance).

“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 (about) over the years and lied (about previously) on oath.

“I think it is more likely that it was not a genuine recollection of an actual conversation, but a reconstructed and false recollection.

“In the circumstances, the prosecution have not discharged the onus of establishing the offence charged beyond a reasonable doubt.”

Carmichael was sentenced to 11 years’ jail for the manslaughter of Rutherford in May 1998.

Carmichael was originally charged with Rutherford’s murder, but a jury found him guilty of the lesser charge of manslaughter.

Read the full decision.

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