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 45Court 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…
Keep reading for free
Create a free CaseChat account to read R v Bunting and Wagner and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2005] SASC 45
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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.