R v Bunting and Wagner - [2005] SASC 45

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BUNTING AND WAGNER
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
10 February 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Applications for leave to appeal and appeal against convictions for multiple counts of murder - first applicant found guilty by jury of 11 counts of murder - second applicant pleaded guilty to three counts of murder and found guilty by jury of a further seven counts of murder - leave to appeal refused by a single Judge of this Court - whether trial Judge erred in directions to jury concerning similar fact evidence - whether trial Judge erred in directions to jury relating to the taking and sharing of victim's property and false stories about their whereabouts - whether certain counts of murder were properly joined - whether trial Judge erred in refusing to order separate trials on certain counts - whether trial Judge should have ordered separate trials of the applicants - whether verdicts unsafe and unsatisfactory - whether trial Judge erred in directions to jury relating to lies told by accused - whether trial Judge erred in directions to jury relating to adoption of statements - whether trial Judge erred in directions to jury relating to circumstantial evidence - whether trial Judge erred in directions to jury relating to corroboration of witnesses considered as accomplices - whether grounds of appeal reasonably arguable - order that there be further argument before the Court on grounds relating to the length and complexity of the trial otherwise leave to appeal refused on all grounds.
Supreme Court Criminal Appeal Rules r 15(8)(b); Criminal Law Consolidation Act 1935 (SA) s 278, s 352(1)(a)(i), s 367, referred to.
R v Bunting and Wagner [2004] SASC 235; R v Bunting & Ors (No 3) (2003) 230 LSJS 410; Ahern v The Queen (1988) 165 CLR 87; R v Garrett (1988) 50 SASR 392; Edwards v The Queen (1993) 178 CLR 193; Peacock v The Queen (1911) 13 CLR 619, considered.

R v BUNTING AND WAGNER
[2005] SASC 45
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: Mr Bunting and Mr Wagner have appealed and made an application for leave to appeal against convictions for murder. They claim to appeal as of right on certain grounds, and seek leave to appeal on other grounds
A Judge of this Court considered the appeals and applications pursuant to s 367 of the Criminal Law Consolidation Act 1935 (SA). The Judge refused leave to appeal on all grounds. Mr Bunting and Mr Wagner have requested that the applications be heard and determined by the Full Court. The applications were listed before the Full Court for oral argument by order of the Court under r 15 (8) (b) of the Supreme Court Criminal Appeal Rules.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] SASC 45
Decision Date: 10 February 2005

CaseChat Overview and Summary

In the case of R v Bunting and Wagner, the applicants sought leave to appeal against their convictions for multiple counts of murder. Mr Bunting was found guilty by a jury of 11 counts of murder, while Mr Wagner pleaded guilty to three counts and was found guilty by a jury of a further seven counts of murder. The applicants argued several grounds for appeal, including errors in the trial judge's directions to the jury concerning similar fact evidence, taking and sharing of victims' property, and false stories about their whereabouts. They also contended that certain counts of murder were not properly joined, and that the trial judge should have ordered separate trials on certain counts. The applicants further argued that their verdicts were unsafe and unsatisfactory, and that the trial judge erred in various directions to the jury.

The legal issues before the court were whether the trial judge erred in his directions to the jury and whether the verdicts were unsafe and unsatisfactory. The court found that the trial judge had dealt with the large amount of material before him with admirable clarity and balance. Consequently, the court was satisfied that the various criticisms of the trial judge's directions were not reasonably arguable, and leave to appeal should be refused on those grounds. However, the court considered that further argument should be heard before the court on grounds relating to the length and complexity of the trial. Apart from that, leave to appeal was refused on all other grounds.

In conclusion, the court refused leave to appeal on all grounds, except for the issue relating to the length and complexity of the trial, which would be further argued before the court. The court found that the trial judge had provided adequate directions to the jury and that the verdicts were safe and satisfactory. As a result, the applicants' appeals were dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr Bunting appeared in person at the hearing of the application. He declined to put submissions to the Court in relation to the grounds raised by him. He declined to do so because the Court was not prepared to direct the removal from the court room of a police officer, to whose presence he objected. Despite this I will deal with these grounds. Some of the grounds raised by Mr Bunting fall into the groups referred to above.Facts As I have said, I adopt the Judge’s summary of the facts. As well, I set out a summary of the prosecution case by the trial Judge, prepared for a ruling dealing with the questions of joinder and severance. See R v Bunting & Ors (No3) [2003] SASC 251; (2003) 230 LSJS 410 at [346] - [348] and [380]:“[346]The Crown submitted that the evidence was capable of establishing the existence of an over-arching joint enterprise to which each accused was a party and pursuant to which each deceased was killed. The common enterprise began in about 1992 with the murder of Trezise. The accused were linked by their common hatred of homosexual persons and paedophiles. The enterprise developed. Where possible the accused sought to benefit from the property of the deceased and to access any Centrelink benefits to which the deceased were entitled at the times of their deaths. Where necessary, personal details were extracted from the deceased immediately before their deaths with a view to ensuring the continuation of the benefits and to arranging access by the accused to those benefits. Steps were taken to create the impression that the deceased were still alive. False stories were spread to explain disappearances and false sightings of deceased were created. The voices of some deceased were recorded with a view to playing those voices to friends or family thereby creating the impression that the deceased were still alive but wanted nothing to do with family or friends.[347]According to the Crown, Vlassakis was groomed and eventually became a trusted member of the group. Each of the accused and Vlassakis were directly involved in one or more murders. Each accused benefited from the death of one or more deceased through receiving property and by accessing Centrelink benefits. Each accused was actively involved in the storage of bodies and in the movement of barrels containing bodies and of other material in order to avoid exposure of the crimes.[348]It is the Crown case that as the enterprise between the accused developed, it came to include the murder of persons it was thought necessary or appropriate to kill because they knew of other murders and were perceived as creating a risk of exposure. The nature of the enterprise was such that each accused was implicated in each murder even if a particular accused was not party to plans to murder a particular deceased nor present at the time of the murder.…[380]It is the Crown case that Bunting and Wagner commenced the relevant relationship in 1992 when Bunting killed Trezise and enlisted the aid of Wagner and Lane in disposing of the body. Thereafter, Bunting and Wagner both actively participated in the killing of each deceased. In referring to both actively participating, I include the circumstances of Johnson. It is the Crown case that Wagner and Bunting together tortured Johnson and that, while Wagner and Vlassakis were absent from the bank for the purpose of using Johnson’s credit card, Bunting killed Johnson. The Crown also alleges that Bunting and Wagner acted jointly with respect to the property and benefits of a number of deceased and that property of a number of deceased was found at locations associated with both Bunting and Wagner. Both were involved in telling false stories. Both are linked to the bank and the activities within the bank by the evidence of Vlassakis and the Freemans together with forensic evidence such as DNA and fingerprints.”

Evidence

Evidence Before The Court

The police found the bodies of eight of the deceased in barrels in a disused bank building in a small town north of Adelaide. The prosecution led a substantial amount of evidence about the movement of these barrels. At various times the barrels were held at premises associated with one of the accused, or to which they had access, before they were moved to the bank building.Directions relating to similar fact evidence Under this heading I deal with grounds 4, 5, 31, 50, 51, 52, 53, 59, 79 and 84 of Mr Wagner’s grounds, and ground 8 of Mr Bunting’s grounds. Grounds 4, 5 and 84 raise the directions given by the Judge as to the use of evidence relating to the death of Troy Youde, Frederick Brooks and David Johnson, the subject of counts 9, 10 and 13 respectively, as evidence of the applicants’ guilt of the murder of Elizabeth Haydon, the subject of count 12. The Judge ruled that evidence on any one count could be used as evidence on another count, only to the extent that he so directed the jury: see T 10732. He did not treat the evidence as cross-admissible generally. In directing the jury about the use of evidence relating to the deaths of Troy Youde, Frederick Brooks and David Johnson, on the count relating to Elizabeth Haydon, the Judge used the concept of “underlying unity”. His approach is indicated by the following short extract from his directions (at 610-611):“Accompanying the murder of Elizabeth Haydon are certain features. The Crown says that those features are also present in another murder. It is the Crown case that because of the common features, there is an underlying unity between the murder of Elizabeth Haydon and another murder such that you should be led to the conclusion that the same person or persons were responsible for each murder.You will readily appreciate that this line of reasoning requires a very careful consideration of the circumstances surrounding each of the other murders and the murder of Elizabeth Haydon. If, after a comparison of the features of the other murder with the features of the murder of Elizabeth Haydon, you are satisfied that there is such an underlying unity between the murders that the same person or persons were responsible, you may take that fact into account in deciding whether the Crown has proved that the accused murdered Elizabeth Haydon.There is no suggestion that something akin to a unique signature accompanied each murder. What you are entitled to do is to compare the circumstances of each murder and ask whether, as a matter of commonsense, experience and judgment, there is such an underlying unity between the murders that it leads you to the conclusion that the same person or persons were responsible for each of the murders. To put it another way: is there such an underlying unity between the murders that it excludes the possibility that the accused was not involved in the murder of Elizabeth Haydon?Ladies and gentlemen, this line of reasoning does not involve any reasoning based on the character of the accused. You must continue not to reason that if an accused is guilty of another murder, he is the type of person likely to commit the crime charged.”The Judge then identified for the jury the features of the other deaths that the jury could use to establish an underlying unity.

Decision

Reasons for decision

The summing up was indeed lengthy. But in my opinion the trial Judge dealt with a large amount of material before him with admirable clarity and balance. That is why I am satisfied, subject to the ground of appeal that raises the impact of the overall length of the trial, that the various criticisms of the Judge’s directions are not reasonably arguable, and that leave to appeal should be refused. I am conscious of the fact that this may seem a surprising outcome after such a lengthy case involving so many counts.Conclusion For the reasons indicated, I would order that there be further argument before the Court as presently constituted on ground 7 of Mr Wagner’s grounds of appeal, and on grounds 1, 2 and 3 of Mr Bunting’s grounds of appeal. I would so order on the basis that the application for leave to appeal will be treated as the hearing of the appeal on those grounds. Apart from that I would refuse leave to appeal on all other grounds. BLEBY J: I am indebted to the Chief Justice for his treatment of the grounds of the application. I agree with the orders he proposes and with his reasons. I have nothing to add. GRAY J: I agree with the orders proposed by Doyle CJ and with his reasons. I have nothing further to add.

Ratio Decidendi

Legal Principle Established

In my opinion these grounds of appeal are not reasonably arguable.The corroboration warning relating to Ms Elliott This ground of appeal is raised by ground 83 of Mr Wagner’s grounds of appeal. The complaint relates to evidence given by a sister of Elizabeth Haydon. An accomplice direction was given because she was an accomplice in relation to the murder of Suzanne Allen. The matter was not the subject of submissions by Mr Cuthbertson before us. The Judge gave a clear and adequate direction to the jury about the importance of corroboration in relation to Ms Elliott: at 76 – 78. The complaint raised by this ground relates to the direction that the Judge gave on the question of corroboration, in relation to the death of Elizabeth Haydon. Ms Elliott gave evidence that she was told a number of different stories by Mr Bunting, Mr Wagner and Mr Haydon about the whereabouts of Elizabeth Haydon. She also gave evidence of an incident involving the removal of items in Mr Haydon’s motor vehicle, which evidence suggested that the accused were removing evidence of Elizabeth Haydon’s death. As to the former, the Judge directed the jury that statements that the accused made to the police, in which they made claims similar to those made to Ms Elliott, about the whereabouts of Elizabeth Haydon, were capable of amounting to corroboration. In connection with the removal of property from the house, he directed them that corroboration might be found in evidence from a Mr and Mrs Freeman, relating to the arrival of the vehicle at their property and of observations that they made supporting a conclusion that the vehicle contained a body or bodies. I can see no reason why this evidence could not be treated as corroborative of the evidence of Ms Elliott. It was evidence coming from a source independent of Ms Elliott, and tended to support her evidence and to implicate Mr Wagner in the killing of Elizabeth Haydon. In the case of the statements to the police, they were made by Mr Wagner. In relation to the removal of property, the evidence was that Mr Wagner was involved in that. This ground is not reasonably arguable. Leave to appeal should be refused.Other grounds or aspects of grounds not the subject of oral submissions There are a number of other grounds of appeal, supported by Mr Cuthbertson’s written outline, which were not argued before us. I propose to deal with them relatively briefly. Ground 31 of Mr Wagner’s grounds relates to a recording of the voice of Michael Gardiner apparently made in connection with his killing. The Judge told the jury that they might conclude that Michael Gardiner’s voice was recorded before his death, that the recording was used to put messages on the telephone message recorders of acquaintances of his, and that this was done to conceal his death, and might give rise “to an inference as to some of the circumstances that accompanied the murder of Michael Gardiner”: at 315. The prosecution contention was that the recording was made in preparation for the murder, and that this planning indicated that it was a premeditated murder that involved planning and equipment.