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

1. 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

2. 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.

3. The Judge who refused leave to appeal provided a comprehensive summary of the background to the case, of the charges and of the evidence: see R v Bunting and Wagner [2004] SASC 235. Subject to some quite minor corrections, the parties accepted this summary as accurate. I gratefully adopt his summary (at [1] – [455]). These reasons should be read with his reasons.

4. Mr Bunting and Mr Wagner and were jointly charged with 11 counts of murder alleged to have been committed between December 1995 and May 1996.  Mr Bunting was also charged with the murder of Clinton Trezise, alleged to have been committed in 1992.  In relation to this offence Mr Wagner was charged with assisting an offender.

5. Mr Bunting and Mr Wagner were tried together on these counts.  The trial lasted about 9 months.  Mr Vlassakis, who was charged with and pleaded guilty to four of the counts of murder, gave evidence for the Crown at the trial.

6. Mr Bunting was found guilty by the jury of 11 counts of murder including the count relating to Clinton Trezise.  Mr Wagner, who had pleaded guilty to three of the counts of murder, was found guilty of a further seven counts of murder.  On the joint count relating to the murder of Suzanne Allen the jury failed to reach agreement.  Mr Wagner was acquitted by direction of the Judge on the count of assisting an offender in relation to the murder of Clinton Trezise. 

7. Mr Bunting and Mr Wagner were sentenced to life imprisonment on each count.  A non-parole period was not fixed. 

8. Mr Wagner appeals and seeks leave to appeal on 84 grounds.  Most of the grounds can be divided into groups of related grounds, because they make the same or a similar complaint in relation to more than one count.  I will deal with each group in turn mainly but not always in the order in which they were put to the Court by Mr Cuthbertson QC, counsel for Mr Wagner.

9. 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

10. 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.”

11. I also set out one extract from the single Judge’s reasons in which he summarises the prosecution case: see R v Bunting and Wagner [2004] SASC 235 at [56] – [63]:

    “[56]Vlassakis co-operated with the police in their investigations, and gave statements to them.

    [57]He gave evidence for the Crown at the trial of the charges against Bunting and Wagner.  His examination and cross-examination occupied many days.

    [58]His evidence supported the Crown case that there was a long-standing relationship between himself and Bunting, Wagner and Haydon.

    [59]He (and other witnesses) gave evidence of statements made by Bunting and Wagner which indicated that they shared a hatred of pedophiles and homosexuals.  It was the Crown case that this hatred motivated them to commit at least some of the murders.

    [60]It was alleged that as the murders progressed, the accused murdered other persons whom it was thought had knowledge of a previous murder, and for that reason posed a risk to them.

    [61]A common element in almost all of the murders was that property belonging to the victims was taken by Bunting and Wagner, and in some cases by Haydon or by others closely associated with the accused.

    [62]The Crown also led evidence, from which it was open to the jury to conclude that Bunting and Wagner tortured the victims, and that from that activity they:

    (a)    derived pleasure;

    (b)    obtained personal details, including keycard numbers and information by which, after the death of the victim, they were able to obtain payment of ongoing Centrelink benefits, and

    (c)    made voice recordings of the victims which were used to give a false explanation for the disappearance of the victim and to create the false impression that they were still alive.

    [63]It was the Crown case that there was a system or pattern to the murders and that there was an underlying unity between all of them which supported the view that the accused were, as Ms Abraham QC put it to the jury in opening, “in the business of killing”.”

12. 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

13. 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.

14. 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.

15. 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.

16. 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.

17. Mr Cuthbertson submits that the direction was inadequate.  He complains the Judge failed to explain “underlying unity”; he did not say that the effect of the evidence must be to exclude the possibility of coincidence, and he should have used the concept of the crime in question having the stamp of the accused on it.

18. I disagree.  The Judge correctly directed the jury how the evidence in relation to Troy Youde, Frederick Brooks and David Johnson could be used in relation to Elizabeth Haydon.  He told the jury that they had to be satisfied that the accused were guilty of those murders.  In fact, Mr Wagner pleaded guilty to two of them.  He emphasised to the jury that the underlying unity had to satisfy them that the same person or persons were responsible.  The Judge explained the matter to the jury in a manner that was clear and adequate in the circumstances.  This complaint has no reasonable prospect of success.

19. Mr Cuthbertson also submits that the Judge failed to direct the jury adequately in relation to the point that the murders of Troy Youde, Frederick Brooks and David Johnson might have been committed by Mr Vlassakis, Mr Bunting, Mr Wagner and Mr Haydon or one or more of them, in various possible combinations.  The feature of similarity relied upon as the link to the death of Elizabeth Haydon, he submits, might be due to the involvement of some only of the possible offenders.  For example, it might be due to Mr Bunting’s involvement rather than to Mr Wagner’s involvement.  This, he submits, is an aspect of the process of reasoning that was not brought to the jury’s attention.

20. Again, I disagree.  The Judge brought this aspect of the matter to the jury’s attention.  Towards the end of this part of the directions, after dealing with the facts, the Judge said (at 613):

    “As the Crown’s reasoning proceeds, once you are satisfied that the accused together murdered, for example, Troy Youde, you should be satisfied that the underlying unity between that murder and the murder of Elizabeth Haydon excludes the possibility that the accused were not involved in the murder of Elizabeth Haydon.  Even if it is possible that someone else was involved, such as Mr Vlassakis or Mark Haydon, nevertheless the underlying unity is such that the Crown asks you to conclude that the presence of the common features positively proves that the accused were involved in both murders.  The same process of reasoning is to be considered in relation to the murders of Fred Brooks and David Johnson when compared with the murder of Elizabeth Haydon.”

21. This is only one extract from the summing-up, but in my opinion taken as a whole this part of the summing-up dealt adequately with the point raised by Mr Cuthbertson.  The Judge brought home to the jury the need for them to be satisfied that Mr Bunting and Mr Wagner in particular were guilty of the other murders, and were involved in the features of “underlying similarity”.  This complaint is not reasonably arguable.

22. A further complaint raised by Mr Cuthbertson is based on the fact that the source of the evidence of matters relied on by way of underlying unity was Mr Vlassakis.  That being so, he argues, the Judge should have directed the jury about the danger of relying on Mr Vlassakis as the source of the evidence, because he had a motive to lie.  The evidence of underlying similarity could not have the probative force it would have if it came from a number of different sources, in which event, as is sometimes the case, it could be said that it was inherently unlikely that a number of different witnesses would have, by coincidence, given the same evidence, or evidence to the same effect.

23. I agree with the submission by Ms Abraham QC, counsel for the Director of Public Prosecutions, that this ground is not reasonably arguable.  In a nutshell, it proceeds on a false premise.  There was ample evidence, without relying on the evidence of Mr Vlassakis, of the involvement of Mr Bunting and Mr Wagner in the three murders in question, and that Mr Bunting was the dominant one of the two.  The involvement of Mr Vlassakis in the three murders, and the fact that he was able to give evidence about them, is not a reason to exclude the process of reasoning explained by the Judge to the jury.  Nor, in the circumstances, did Mr Vlassakis’ involvement call for further directions of the kind suggested by Mr Cuthbertson.

24. As I have said, there was a substantial body of independent and objective evidence in support of the prosecution case in this respect.  It included the condition in which the bodies were found, items used in torturing the victims such as handcuffs, sparklers, and the varioc machine, evidence about the movement and storage of the bodies, evidence of voice recordings, and evidence relating to the involvement of Mr Bunting and Mr Wagner in dealing with the property of the victims after their death.  This is the evidence to which the Judge referred.  This evidence did not depend upon the evidence of Mr Vlassakis, but tended to support it.

25. As well, earlier in his directions (at 57-75) the Judge gave lengthy directions to the jury about Mr Vlassakis’ evidence.  This included an accomplice warning, a warning that the jury must take into account the fact that Mr Vlassakis was not a person of good character, and a warning that he had his own interests to serve.  The Judge dealt at length with inconsistencies in Mr Vlassakis’ evidence, and warned the jury against acting on it if it was not corroborated.

26. I consider that the Judge’s directions, to the extent that they relate to the involvement of Mr Vlassakis, were adequate and appropriate.  In my opinion this ground has no reasonable prospect of success.

1. For those reasons, leave to appeal should be refused in relation to the grounds in question.

2. Grounds 51-53, 59 and 79 relate to the use made of recordings of the voices of certain of the victims.  Grounds 51-53 relate to the death of Troy Youde.  Ground 59 relates to the death of Gary O’Dwyer.  Ground 79 relates to the death of Elizabeth Haydon.

3. The prosecution case was that the voices of victims were recorded to provide the killers with gratification, to enable them to conceal the death of the accused (by later using the voice recording) and to enable them to profit from the death by getting access to property of or benefits payable to the deceased.  A cassette containing the recorded voices of Troy Youde, Frederick Brooks and Gary O’Dwyer was found in Mr Wagner’s home.  On each of the three tracks Mr Bunting’s voice is heard.  On the tracks relating to Frederick Brooks and Gary O’Dwyer, Mr Wagner’s voice is heard also.  A recording of David Johnson’s voice, on which Mr Bunting’s voice is heard, was also found on Mr Bunting’s computer.  A cassette with a recording of Elizabeth Haydon’s voice was found in Mr Bunting’s home.

4. In relation to this evidence, the Judge directed the jury (at 451) as follows:

   “When you are considering the recording of Troy Youde, if you are satisfied that, acting together, the accused made a recording of another deceased for the purpose of concealing the about-to-be-committed murder of the other deceased and profiting from the death, you may use that fact as a piece of circumstantial evidence capable of bearing upon the purpose for which the Troy Youde recording was made.”

   The Judge gave a similar direction in relation to the purpose for which the recording of Gary O’Dwyer’s voice was made and also in relation to the recording of Elizabeth Haydon’s voice.

5. Mr Cuthbertson complains about these directions.  He says that the Judge should have explained the meaning of “acting together”, and he complains that the Judge failed to explain how a conclusion that Mr Wagner was involved in the taping of Troy Youde’s voice could be used as an item of circumstantial evidence.  This, he submits, called for a full “similar fact” direction.

6. Once again, I consider that this group of criticisms is not reasonably arguable.

7. There was strong evidence supporting an inference that the tape recordings were made in the course of killing the deceased persons whose voices were heard, with a view to gratifying the killers and for the other purposes outlined above.  As Mr Wagner’s voice is heard on two of the tapes, and taking into account other evidence, it would be easy for the jury to conclude that he was involved in recording Troy Youde’s voice, for example, although he is not heard, and that this recording was made in similar circumstances and for similar reasons as the others.  The direction that the Judge gave was adequate.  His reference to “acting together” did not in any sense take that issue away from the jury.  Indeed, he was bringing the issue to the jury’s attention.  In the light of his general directions about circumstantial evidence, the direction was adequate.

8. It was not necessary for the Judge to give, in relation to these items of evidence, a full “similar fact” direction.  The Judge brought to the jury’s attention the possibility of using the evidence relating to the recording of Frederick Brooks and Gary O’Dwyer, as evidence that might help them come to a conclusion about the purpose for which the voice of Troy Youde was recorded.  That was an intermediate step in the process of reasoning to guilt.  The evidence was damning evidence, but that does not mean that further directions were called for.

9. The other complaints made in this group of grounds fail for similar reasons.

10. For those reasons, leave to appeal should be refused on all the grounds raised under this heading.  I add that I agree with the reasons of the single Judge on this topic.

    Directions relating to the taking and sharing of property of the deceased, to the taking of Centrelink benefits payable to the deceased, and to the telling of false stories about the whereabouts of the deceased

11. The prosecution case was that Mr Bunting and Mr Wagner, and on occasions Mr Haydon and Mr Vlassakis, were engaged in a joint enterprise to murder.  The prosecution case was that the joint enterprise included taking and sharing out the property of the victim, continuing to get access to Centrelink benefits payable to the victim, and creating the false impression that the victim was alive by using recordings of the victim’s voice, or by making false statements about the whereabouts of the victim, or about when the victim was last seen.

12. The trial Judge concluded that there was reasonable evidence, apart from things said and done by Mr Bunting or Mr Wagner in the absence of the other, that each of them was a participant in a joint enterprise to murder: see T10645, 10699-10701 and 10732 and Ahern v The Queen (1988) 165 CLR 87 at 100. On that basis the Judge left to the jury evidence of things said and done by Mr Bunting in Mr Wagner’s absence, as evidence of Mr Wagner’s involvement in the joint enterprise.

13. The evidence in question was part of the evidence relating to the sharing out of the property of certain of the deceased between Mr Bunting and Mr Wagner or people closely associated with them; relating to the obtaining of Centrelink benefits payable to the deceased and the distribution of them to Mr Bunting and Mr Wagner or people associated with them, and relating to the spreading by Mr Bunting and Mr Wagner of false stories about the deceased, clearly done with a view to concealing the death of the victim.

14. The evidence and the directions related to seven of the deceased.  The names of the relevant deceased, and the grounds of appeal (each of them raises essentially the same point) are as follows:  Ray Davies ground 20; Michael Gardiner grounds 25, 28, 29, 30 and 32; Thomas Trevilyan grounds 38 and 39; Gavin Porter grounds 43, 44, 45, 46 and 48; Troy Youde grounds 54, 55 and 56; Gary O’Dwyer grounds 60, 61, 62, 68 and 69; Elizabeth Haydon grounds 72, 74-77, 80 and 82.

15. To illustrate the kind of direction given in relation to property, I refer to part of the summing-up relating to the property of Ray Davies.  The Judge said (at 177):

    “As you know, personal property belonging to or connected with Mr Davies was found at Bundarra Court, the home occupied by Mr Bunting, and in the [motor car] which was found at the home occupied by Mr Wagner at … .  Regardless of where the property was found, the evidence concerning the property can be used by you in respect of both accused when you are considering whether the Crown has proved its case that as part of a joint enterprise, the accused killed Mr Davies and set about concealing his death and profiting from it by taking control of his property and gaining access to his Centrelink benefits.”

    Having dealt with a number of items of property, the Judge gave a further similar direction at 181, relating to property and Centrelink benefits.  In relation to the killing of Michael Gardiner the Judge gave the following direction about false statements (at 331):

    “Ladies and gentlemen, another feature of the case in connection with Michael Gardiner concerns false statements made by the accused about seeing Mr Gardiner.  It is the Crown case that these were made in order to create the impression that Michael Gardiner was still alive.  Counsel for the accused put to you that efforts to conceal Michael Gardiner’s death are consistent with opportunism, or consistent with assisting someone else.  They put to you that it does not implicate the accused in the murder.

    …

    On the Crown case the statements by Mr Wagner about seeing Mr Gardiner at a servo were Mr Wagner playing his role in continuing to conceal the fact that Michael Gardiner was dead.  That evidence, if you accept it, can also be used by you in the case against Mr Bunting.  If you are satisfied that the statement was false, you would be entitled to take that into account in deciding whether the evidence satisfies you that the accused were acting together and that they were involved in the murder of Michael Gardiner and in a plan to conceal his death.

    …

    Mr Apps put to you that if you find Mr Wagner had knowledge of the body in the barrel with the body of Mr Lane, or that he was involved in telling false stories, those matters, in themselves, merely indicate knowledge and some degree of assistance to whoever killed Michael Gardiner and they did not implicate Mr Wagner in the murder.”

16. In relation to these various grounds Mr Cuthbertson does not complain that the evidence was not admissible, or able to be used as evidence of a joint enterprise.  He acknowledged that there was prima face evidence of a joint enterprise to kill.

17. As I understood it, his complaints seem to be that the Judge should have directed the jury that the evidence against both accused could be used to show where property went, who got different benefits, and from that the jury might draw such inference as they saw fit.  As I understand him, his objection was to the Judge leaving the various items of evidence as evidence of Mr Wagner’s involvement in the murder of the relevant person.

18. Unless I have misunderstood him, it seems to me that that amounts to what the Judge was saying.  Mr Cuthbertson was saying no more than that the process should be broken into two steps.

19. There is no reason why the Judge had to do that.

20. It is important to remember that the prosecution case also involved proof, in relation to Mr Wagner, of things such as Mr Wagner’s possession of documents relating to the property and benefit entitlement of some of the deceased, being documents of a kind that could be used to provide false identification, and including some documents that were obtained as a result of someone getting access to benefits payable to the relevant deceased.  There was a lot of this material.

21. The Judge confined his direction, in each instance, to statements and activities relating to the particular deceased.  I cannot see any basis for arguing that the Judge was obliged to direct the jury along the lines suggested by Mr Cuthbertson.  As I have said, what Mr Cuthbertson suggests seems to me only to break the line of reasoning down into two steps, but in the end to amount to the same process of reasoning.

22. When pressed on this, Mr Cuthbertson seemed to retreat somewhat, and to submit that the Judge had failed to identify “shortcomings” in the evidence, of the kind that the High Court in Ahern (at 104) suggest should be drawn to the attention of the jury. The High Court there referred to the inability of an accused to cross-examine a person whose act or statement, in the absence of the accused was relied upon as against the accused. When pressed for details on this point, Mr Cuthbertson suggested that the Judge should have suggested to the jury that the acts and statements, in the absence of Mr Wagner, relied upon against him, should not be given much weight as evidence implicating Mr Wagner in the crime of murder. He suggested that the jury should have been told that the absence of a direct link between Mr Wagner and, for example, property held by Mr Bunting or benefits accessed by Mr Bunting, and statements by Mr Bunting in Mr Wagner’s absence, were things which meant the jury could not place “any great store” on this evidence as implicating Mr Wagner in murder. He also relied upon the fact that Mr Bunting appeared to have been the beneficiary of the property and benefits of the deceased, to a much greater extent than Mr Wagner. This might suggest that Mr Wagner was only helping Mr Bunting after the event, and was opportunistically taking the occasion to benefit by taking property or benefits of the deceased.

23. In my opinion these are matters of detail only.  The Judge gave careful and detailed directions about this aspect of the prosecution case.  The jury could not have missed the point that Mr Bunting appeared to be the dominant party.  On a number of occasions the Judge made reference to submissions that statements or conduct were consistent with a crime of less than murder.  One such example is found in the last paragraph quoted above.

24. There are two further points that are worth making.  The first is that Mr Wagner was found in possession of a substantial amount of documentation or property belonging to various victims.  Mr Bunting was found to be in possession of the property of ten victims, and Mr Wagner of nine victims.  The false stories that were relied upon were not relied upon as lies indicating guilt, but only as evidence of joint enterprise.

25. In my opinion, it is not reasonably arguable that the directions that the Judge gave in relation to this aspect of the trial could give rise to a miscarriage of justice.   I would refuse leave to appeal on these grounds.

    Complaint of wrong joinder

26. By ground one of his grounds of appeal, Mr Wagner complains that counts one and two (Clinton Trezise), count three (Ray Davies), count four (Suzanne Allen) and count seven (Thomas Trevilyan) were not properly joined.  He makes a similar complaint in ground 34 in relation to the death of Thomas Trevilyan.

27. In ground two of his grounds, Mr Bunting complains that counts one, three, four and seven were not properly joined.

28. The submission is that s 278 of the Criminal Law Consolidation Act 1935 does not authorise the joinder of these counts, because they are not “founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.”

29. According to Ms Abraham, before the trial Judge the only challenge to the propriety of joinder related to count two, the charge against Mr Wagner of assisting an offender in connection with the murder charged in count one.  That is borne out by the trial Judge’s reason on the question of joinder, and on applications for separate trials:  R v Bunting & Ors (No. 3).  The Judge prepared detailed and thorough reasons on these questions, but in those reasons appears to have proceeded on the basis that joinder was not an issue, except in relation to count two.

30. At the hearing before us Mr Cuthbertson did challenge the joinder, but in very brief terms.  I consider that the challenge raises a mixed question of fact and law, and that leave to appeal is required.

31. In my opinion it is not reasonably arguable that the joinder was not authorised.  These were offences of a similar character.

32. It is true that the bodies of the victims in question were not found in barrels in the bank vault.  In that respect these counts were different.

33. But in relation to joinder, when considering the challenge to the joinder of count two, the trial Judge referred to the decision of this Court in R v Garrett (1988) 50 SASR 392 where King CJ, with whom the other members of the Court agreed, said at 401:

    “A similarity may arise, however, not only from the legal elements of the offences in question, but also from the facts which constitute them and the circumstances in which and the relationships out of which they arise.”

    That was the proposition that the Judge applied.  It was in that context that the Judge made the observations at [346]-[348] set out earlier in these reasons.  As the Judge said at [345], in the present case the relevant similarity arises from the facts and circumstances in which and the relationships out of which the offences arose.  The emphasis in the present case is properly put on the circumstances out of which the offences arose, and on the relationship between Mr Bunting and Mr Wagner, and later others, out of which the offences also arose.

34. In my opinion these grounds of appeal are not reasonably arguable, and leave to appeal should be refused.

    Complaint that the Judge erred in refusing to order separate trials of counts one and two (Trezise), count three (Davies), count four (Allen) and count seven (Trevilyan).

35. In Mr Wagner’s case the complaint that the Judge should have ordered a separate trial of all of the above counts is raised by grounds 2, 7, 15, 23 and 25.

36. Mr Bunting complains generally of the length and complexity of the trial, raising a complaint that the failure to limit the number of counts to be tried meant that he did not receive a fair trial, because of the length and complexity of the case as a whole.  That is ground one of his grounds of appeal.  By ground two he complains of the decision by the Judge not to order separate trials on the counts in relation to which Mr Wagner raises his complaint.

37. As it happens, Mr Wagner was acquitted on count two, the charge of assisting an offender, by direction of the trial Judge.

38. Mr Cuthbertson pointed to some matters that distinguished the counts in question from the remaining counts.  As to the death of Clinton Trezise, the evidence was that he was killed in 1992, some three years before the remaining killings began.  His body was found in a shallow grave north of Adelaide, and was not identified for some time.  In his case there was no taking of property, and no recording of voices.  As to Suzanne Allen and Ray Davies, their bodies were found buried at a house at which Mr Bunting had lived.  As to them he relied on the limited cross-admissibility of evidence.  A somewhat similar submission was made to the death of Thomas Trevilyan.  He was found hanging from a tree.  On its face, it looked like a case of suicide.  In the case of Thomas Trevilyan, there was evidence of extensive admissions by Mr Bunting to Mr Vlassakis to the effect that he and Mr Wagner had murdered Thomas Trevilyan.  Those admissions were not admissible as against Mr Wagner.  Mr Cuthbertson made the point that this evidence might have influenced the jury to reach a conclusion that Thomas Trevilyan did not die by suicide, and that that conclusion might have infected their minds when considering the case against Mr Wagner, against whom this evidence was not admissible.

39. The Judge gave careful consideration to the submissions put to him.  The basis for his decision not to order separate trials appears from the following extract from his reasons:

    “[407]The precise use which the jury can properly make of circumstances relating to one murder in connection with another murder cannot be finally determined until all the evidence has been given and the essential issues have been identified.  Speaking broadly, I am satisfied that the circumstances relating to each murder are cross-admissible in respect of one or more other murders for some or all of the purposes identified by the Crown and outlined earlier in these reasons [350] under heads of admissibility numbered (2)-(7).  Not all counts are cross-admissible on the same basis.  For example, the circumstances relating to the murder of Trezise are relevant to later offences because they identify the beginning of the relevant relationship and the facts of Trezise are directly relevant to the murder of Lane.  The name “Happy Pants” (Trezise) was also one of the names listed by Bunting to Youde shortly before the murder of Youde.  However, the facts of the offences subsequent to the murder of Trezise do not appear to bear upon the principal issues to be determined in connection with Trezise.  The murder of Lane is directly relevant to the issue of motive to murder Trevilyan, but the facts associated with Trevilyan do not appear to be relevant on any other count.

    …

    [409]In my opinion, given the nature of the case and the evidence to be led in support of the Crown assertions, it would be artificial and potentially misleading to sever any count.  This is a matter in which it is necessary for the jury to hear the full story of all the events over a period of years.  To apply a phrase that has been used in the context of similar fact evidence, it would be “an affront to common sense” to sever the counts and thereby to present the jury with a fragmented and distorted picture.

    …

    [415]In these circumstances I reached the view that all counts against Bunting and Wagner should be tried in a single trial.  In arriving at this conclusion, I have not overlooked the points made by counsel for Bunting about the length and complexity of a single trial and the difficulties thereby created.  It is unnecessary to explore the power of the Court to direct that the Crown proceed on a reduced number of counts in order to ensure a manageable and fair trial.  The Court possesses all the powers necessary to ensure that the trial is fair.  I am satisfied that the length and complexity of a single trial of Bunting and Wagner on all counts will not be such as to place in jeopardy the right of either accused to a fair trial.  I do not underestimate the difficulties associated with a single trial, particularly in view of the nature of the evidence to be led, but in my opinion the length and complexity is not such that there is a risk that a jury will be unable or unwilling to apply the directions and to give appropriate and impartial consideration to the evidence.”

    In the last of these paragraphs the Judge also rejected the submission that the trial would be of such length and complexity as to be unmanageable, and not a fair trial.

1. In so concluding the Judge took into account the submission by the Director that certain evidence would be cross-admissible.  At the end of the trial, for what the Judge described as pragmatic reasons, he took a more limited approach to cross-admissibility.  However, there was still a considerable body of evidence that was admissible on more than one count.  I have already referred to some of that evidence.

2. In my opinion the trial Judge’s ruling was clearly correct.  This was a case in which the jury had to hear the whole story, including the full story of the relationship between Mr Bunting and Mr Wagner, how that relationship evolved, and how Mr Vlassakis was gradually drawn into their relationship and into their activities.

3. The Judge gave careful directions to avoid any unfair prejudice that might arise from the joinder.  The Judge’s conclusion that separate trials should not be ordered was not eroded by his later decision to limit the extent to which he would allow evidence on one count to be used on another count.  Nor was it eroded by his warning against general propensity reasoning, which is found at pages 20-21 of the summing-up.

4. To the extent that it is relevant, I also accept the submission by Ms Abraham that even if the trial had been limited, for example, to the counts relating to those deceased whose bodies were found in the bank vault, evidence about the involvement of Mr Vlassakis in other killings would be relevant, and evidence relating to certain other killings would still have been relevant.  The killings of Clinton Trezise and of Ray Davies was referred to during the course of later killings.  It was part of the prosecution case that a reason for the killing of Barry Lane, Elizabeth Haydon and Thomas Trevilyan was their knowledge of earlier murders.  These are examples only.

5. This is not a case in which there was an obvious alternative that would have resulted in a substantially shorter and more straightforward trial.

6. For those reasons I am satisfied that the trial Judge’s refusal to order separate trials was correct.  It is not reasonably arguable that he erred.  Leave to appeal on these grounds should be refused.

   Refusal by trial Judge to order separate trials

7. Mr Wagner complains that the trial Judge should have ordered that he be tried separately from Mr Bunting in relation to count three (Ray Davies), count five (Michael Gardiner) and count seven (Thomas Trevilyan).  These complaints are raised by grounds 3, 14, 24, 33 and 40.

8. This complaint is not made by Mr Bunting.

9. On the application for leave to appeal, oral submissions were not put on this ground.  However, I proceed on the basis that it is pursued.

10. In the circumstances it suffices to say that as to this ground I agree with the conclusion of the single Judge, who refused leave to appeal.  There was good reason not to depart from the usual rule that there should be a joint trial of offenders who are jointly charged with a crime.  I adopt those reasons without repeating them.

    Complaint that the verdicts are unsafe and unsatisfactory

11. A number of grounds filed on behalf of Mr Wagner complain that particular verdicts are unsafe and unsatisfactory, meaning, as argued, that properly directed the jury should have had a reasonable doubt in relation to the count.  They are ground 11 (Ray Davies), ground 22 (Michael Gardiner), ground 36 (Thomas Trevilyan), ground 42 (Gavin Porter) and ground 73 (Elizabeth Haydon).  Mr Bunting makes a like complaint by ground four (Clinton Trezise) and by ground 7 (Thomas Trevilyan).

12. The essence of Mr Cuthbertson’s submission in support of these grounds was that the prosecution case was circumstantial on the counts in question, it was not a strong case, and in particular the evidence could not properly be treated as proof of anything more than Mr Wagner’s involvement, after the relevant killing, in helping Mr Bunting deal with the property of the deceased or get access to benefits payable to the deceased, or perhaps to conceal the death of the deceased.

13. Mr Cuthbertson further submits that the fact that the counts in question were tried with other counts, involving evidence not admissible against Mr Wagner, increases the risk of the jury having been wrongly influenced by evidence on other counts.  He referred, in particular, to the fact that in relation to the death of Thomas Trevilyan there was evidence of admissions by Mr Bunting to Mr Vlassakis that Mr Bunting and Mr Wagner had killed Thomas Trevilyan.

14. These grounds were the subject of very brief submissions on the hearing before us.

15. Having reviewed the evidence, I agree with the conclusion of the single Judge that these grounds are not reasonably arguable.  Looking at the case as a whole, I regard it as a strong case, although I accept that the evidence on the count relating to the death of Thomas Trevilyan might be regarded as not as strong as the evidence of other cases.

16. I consider that these grounds are not reasonably arguable.

    Directions relating to lies

17. A number of grounds filed by Mr Wagner raise complaints about the directions given by the trial Judge relating to the use of lies told by Mr Wagner and Mr Bunting in relation to the deceased.

18. I have dealt already with a number of these grounds in relation to their use by the jury as evidence of a joint enterprise between Mr Bunting and Mr Wagner.  I will not cover that ground again.

19. In his submissions, Mr Cuthbertson returned to the topic of directions relating to lies.  He did so in connection with complaints raised by grounds 30, 39, 44, 48, 69, 75, 76, 77 and 80.  I deal here with the further points that he made in connection with these grounds.

20. At times he returned to the complaint with which I have already dealt.  It is not necessary to say anything more about that complaint.

21. Some of the lies now in question were told by Mr Bunting or Mr Wagner in the presence of the other.  For example, the lie the subject of ground 30.  Some were told by one or other of them alone, for example, the lies by Mr Wagner the subject of ground 39 and ground 44.  The former of these, a lie told to a police officer, was the subject of a lies direction of the usual kind, as was the lie the subject of ground 44.

22. As to lies that were told by Mr Bunting, Mr Cuthbertson submitted that the Judge should have directed the jury that the lie might have been told by Mr Bunting out of a consciousness of guilt on his part alone, and might not reflect any involvement by Mr Wagner.  Alternatively, the lie might have been told by Mr Bunting for his own reasons, to distance Mr Bunting from a crime that he had not committed.  An appropriate direction by the trial Judge in relation to Mr Bunting would have had a “flow-on effect” in relation to Mr Wagner.

23. Mr Cuthbertson further complained that the directions were not adequate.  In dealing with the lie the subject of ground 39, Mr Cuthbertson complains the Judge did not mention all possible reasons, apart from guilt, why Mr Wagner might have lied.  For example, he might have lied to protect Mr Bunting, and that was not mentioned by the Judge.  He might have lied to help Mr Bunting.  A similar complaint was made in relation to the lie the subject of ground 44.  In short, Mr Cuthbertson submits that all or most of the lies relied on by the prosecution should have been the subject of a full, or more complete lies direction.

24. I consider that the answer to these submissions is that given by Ms Abraham.  The lies, by and large, were not left to the jury as evidence of the consciousness of guilt on the part of the speaker in question.  They were led as evidence of a scheme by Mr Bunting and Mr Wagner to conceal the death of the accused, and to get access to their property and Centrelink benefits.  On the two occasions on which they were used as evidence of guilt (ground 39 and ground 44), the Judge gave a lies direction that was adequate in the circumstances: see at 376-378 and 399.

25. In short, having regard to the manner in which the prosecution used the relevant evidence, there is no real risk of the jury reasoning in a manner that called for a direction of the kind outlined in Edwards v The Queen (1993) 178 CLR 193.

    Complaint about directions relating to Mr Wagner adopting statements and admissions by Mr Bunting

26. Complaints about the directions relating to Mr Wagner adopting statements and admissions by Mr Bunting are raised by Mr Wagner in grounds 12, 16, 17 and 18.  Each of these grounds relates to the killing of Ray Davies.

27. Ground 12 complains of the direction the Judge gave about the evidence by Ms Cannon about a conversation with Mr Bunting and Mr Wagner, in the course of which Mr Bunting made statements about taking Ray Davies for a ride, and Mr Wagner joined in and, the prosecution contended, adopted or agreed with what Mr Bunting said.  The conversation tends to implicate each of them in the death of Ray Davies.  The other grounds relate to statements made by Mr Bunting to Mr Vlassakis in Mr Wagner’s presence, about the death of Ray Davies.

28. The complaint is that the Judge did not adequately direct the jury on the issue of whether Mr Wagner adopted or assented to Mr Bunting’s statements.  In particular, Mr Cuthbertson submits that the Judge should have dealt with the circumstances of each conversation more closely, and especially things such as where Mr Wagner was when Mr Bunting spoke, what he heard, whether the jury could infer that the subject matter was something Mr Wagner knew of his own knowledge as distinct from being something that he had previously been told by Mr Bunting.

29. I have considered the Judge’s directions.  The Judge gave a clear direction to the jury that statements by Mr Bunting in Mr Wagner’s presence were not evidence against Mr Wagner unless adopted by him (see, for example, the summing up at 26 and at 32).  He gave further directions in relation to the particular conversations at 147 (Ms Cannon) and at 156-157 (Mr Vlassakis).  In those directions he gave the jury cautions appropriate to the circumstances of the conversations.

30. Bearing in mind the general directions that he gave, and having regard to the circumstances of each conversation, there is no complaint reasonably open about the directions the Judge gave.  Of course he could have gone into the issue in more detail than he did, that will always be the case.  A judgment has to be made, particularly in a long case like this, as to the amount of detail in the directions to the jury.  The directions were adequate.

31. The complaints under this heading are not reasonably arguable.  Leave to appeal should be refused.

    Complaint about directions relating to evidence that Mr Wagner knew that Ray Davies had been murdered.

32. This complaint is raised by ground 19 of Mr Wagner’s grounds of appeal.

33. Mr Vlassakis gave evidence that in the course of events leading up to the killing of Troy Youde, Mr Bunting listed the names of people that he and Mr Wagner had already killed.  Mr Bunting asked Mr Wagner if he had forgotten to mention any of the names.  Mr Wagner then listed the names, including the name of Ray Davies.

34. In connection with the death of Ray Davies, the Judge directed the jury that evidence of Mr Wagner’s knowledge of the death of a particular victim was not an admission of implication in the killing, but could be used as circumstantial evidence, the evidence being the fact of his knowledge of the death of the particular victim.  In relation to Ray Davies he said at 162:

    “If you are satisfied that he had that knowledge [of the death of Ray Davies], the possession of such knowledge would be a piece of circumstantial evidence you are entitled to take into account in considering whether the Crown has proved Mr Wagner was implicated in the murder of Mr Davies.”

35. The only complaint made was that this was weak evidence of guilt.  The answer to that is that it was put forward as but one item of circumstantial evidence to be considered by the jury.  There is no substance in that complaint.  Mr Cuthbertson also submitted that the jury should have been told explicitly to have no regard to this evidence unless it could not be explained by reasonable hypotheses consistent with innocence.  That point was covered by the Judge’s general directions on circumstantial evidence, to which I will come in due course.

36. In my opinion this complaint is not reasonably arguable.

    Directions relating to the presence of methadone in fluid taken from the body of Michael Gardiner.

37. This complaint is raised by ground 27 of Mr Wagner’s grounds of appeal.

38. Traces of methadone were found in fluids taken from the body of Michael Gardiner.  Mr Vlassakis was a user of drugs and had access to methadone.  Defence counsel suggested to the jury (the details do not matter) that the finding of methadone in Michael Gardiner’s bodily fluids was an item of circumstantial evidence suggesting that Mr Vlassakis, rather than either of the accused, had murdered Michael Gardiner.  The suggestion apparently was that Mr Vlassakis had sedated and then killed Michael Gardiner.

39. After referring to that submission, the Judge commented that methadone was also found in fluids taken from the body of Barry Lane, but that there was no evidence to suggest that Mr Vlassakis had any involvement in the murder of Barry Lane (at 297).

40. Exception is taken to this comment.  There is nothing in the point.   This was not an inappropriate use of evidence relating to Barry Lane.  A comment to the same effect could have been made by the Judge telling the jury that it was common knowledge that a fair number of people in the community have access to methadone through drug addiction programs.  The only point being made was the obvious one, that little weight could be placed on the presence of methadone in fluids taken from the body of Michael Gardiner.

41. It is not reasonably arguable that this comment could have given rise to a miscarriage of justice.

    Complaint about the direction relating to the killing of Gary O’Dwyer.

42. This complaint is raised by ground 71 of Mr Bunting’s grounds.

43. A witness for the prosecution, Ms Sansone, gave evidence that she met with Gary O’Dwyer about two weeks after, according to other evidence, he had been tortured and killed.  Counsel for the Director at trial submitted that the witness, by reference to whose evidence the date of the killing was fixed, was mistaken as to the time of the relevant events.

44. Counsel for the accused argued that the discrepancy raised the possibility that nothing happened to Gary O’Dwyer on the night that Mr Vlassakis identified as the night when he was killed, and that it was Mr Vlassakis who later killed Gary O’Dwyer and then sought the help of the accused (summing up at 561).

45. In the course of dealing with this issue the Judge referred to the recording made when Gary O’Dwyer was killed.  He asked the jury whether it was possible that that recording was made (involving the torture of Gary O’Dwyer) and that Gary O’Dwyer was then allowed to go free until after the meeting with Ms Sansone, to be killed only after that.

46. The complaint raised by this ground of appeal is that the Judge raised this as a possibility when it had not been canvassed in the evidence, and had first been referred to in the course of the address by the prosecutor.

47. There is a short answer to this complaint.  It is clear, when the comment is understood in context, that the Judge was doing no more than highlighting the unreality of any such suggestion, if it was to be relied upon as an explanation for the evidence.  What the Judge was saying was that the only reasonable conclusion was that the recording was made on the same occasion as when Gary O’Dwyer was murdered (summing up 561).  The Judge was not unfairly introducing into the case, for the first time, a hypothesis that could only assist the prosecution.  He was simply commenting on an argument, advanced by the prosecution, that highlighted the unreality of an attempt to explain the evidence in the manner suggested.

48. There is no substance in this point at all.

    Direction relating to Mr Wagner’s knowledge of a statement said to have been made by Elizabeth Haydon

49. This complaint is raised by ground 81 of Mr Wagner’s grounds of appeal.

50. Mr Vlassakis gave evidence that on one occasion Mr Wagner made a jocular remark to Mr Bunting about a statement made by Elizabeth Haydon, shortly before she was killed.  This was in the context, on the prosecution case, of evidence that after the murder of Elizabeth Haydon, Mr Bunting and Mr Wagner made a number of statements, some of which were certainly false, about what she had said and done on the relevant occasion.  Some of these related to her having run away with her boyfriend, and having been seen elsewhere.

51. The Judge directed the jury that if they accepted Mr Vlassakis’ evidence, the statement by Mr Wagner about what Elizabeth Haydon had said was not an admission by Mr Wagner that he was implicated in the murder of Elizabeth Haydon, but could be treated as evidence that he was aware of her death, and so as one item of circumstantial evidence to he considered in conjunction with other evidence (summing up 597).

52. The complaint is that the evidence could be used in this manner only if the remark that Mr Wagner made indicated his direct knowledge of Elizabeth Haydon’s death, and not merely knowledge acquired from Mr Bunting.  That is, the evidence could have the required force only if the jury were satisfied that Mr Wagner was not simply repeating something that Mr Bunting had told him.

53. The direction that the Judge gave was accurate.  It was not essential for him to make this point.  There is no reason to think that the jury would not have been alert to that point.  It is a point that would have applied to a number of statements made by Mr Wagner.

54. I consider that this ground of appeal is not reasonably arguable.

    Directions relating to circumstantial evidence

55. These complaints are raised by Mr Wagner by grounds 21, 26, 41, 49, 58, 64 and 78.

56. These grounds are in substantially the same terms, although there are some slight variations.  They relate to the Judge’s directions concerning the deaths of Ray Davies, Michael Gardiner, Thomas Trevilyan, Gavin Porter, Troy Youde, Gary O’Dwyer and Elizabeth Haydon.

57. These grounds were not separately argued by Mr Cuthbertson, although aspects of the complaints made by them were touched on when arguing other grounds.

58. In general terms the complaint is that it was not sufficient for the Judge to explain to a jury, as he did, the nature and concept and use of circumstantial evidence.  The submission is that the Judge, when directing the jury in relation to the separate counts of murder, should have given a direction of the kind referred to in Peacock v The Queen (1911) 13 CLR 619 at 634, to the effect that the jury could not return a verdict of guilty unless the circumstances were such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

59. The Judge gave such a direction, in clear terms, as part of his general directions relating to circumstantial evidence.  He said (at 24):

    “You cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the offence.  In other words, before you can be satisfied that the accused is guilty, you must be satisfied not only that his guilt is a rational inference, but that it is the only rational inference that the circumstances you find proved ultimately allow you to draw.”

    In my opinion the Judge’s general directions are beyond criticism.

60. After giving the general directions on this and other matters, the Judge then dealt with the evidence count by count.   As he did so, he raised with the jury the possible explanations for the circumstantial evidence that fell for consideration.  For example, in the course of his directions relating to dealings with the property of the deceased, he said (at 173) referring to the taking of property:

    “Was it because it was part of an overall scheme to murder a deceased, conceal the fact of death and gain benefit from the death?  Or is it a reasonable possibility, in the case of a particular deceased, that it does not tend to implicate the accused in the death because it is equally consistent with the accused taking advantage of a death in which the accused was not implicated?”

    A little later (at 176) he alluded to this point again when relating this direction to the property of Ray Davies.

1. Similarly, when giving directions in relation to the death of Thomas Trevilyan, the Judge referred the jury to explanations for circumstantial evidence that might cause the jury to conclude that the guilt of the accused was not the only rational inference that could be drawn from the evidence: at 378 and 386.

2. Having regard to the very clear general directions that the Judge gave, and having regard to the manner in which he brought the evidence to the attention of the jury, I am satisfied that there is no need for him to repeat from time to time the direction that he gave to the jury in the course of the general directions.  It is of some significance on this point that no further directions were sought at the time.

3. In my opinion these grounds are not reasonably arguable, and leave to appeal should be refused.

   Directions relating to the corroboration of Mr Vlassakis.

4. These complaints are raised by Mr Wagner by grounds 47, 57, 63, 65, 66, 67 and 70.  Similar complaints were raised by Mr Bunting by ground 5.

5. These complaints were  not dealt with in any detail before us.

6. The Judge gave the jury a very strong warning about the evidence of Mr Vlassakis, explaining to them why it was dangerous to convict on the basis of his evidence (at 57), and explaining the reasons for the need for great care in considering his evidence.  He explained those reasons in some detail: at 57-70.  Whether, as Ms Abraham submitted, the directions in relation to Vlassakis were unique in their detail and strength, I do not know.  However, it is clear that the Judge gave a direction that was strong, clear, detailed and precise.

7. The Judge then directed the jury, count by count, as he dealt with the evidence, on the evidence that could be treated by them as corroborating the evidence of Mr Vlassakis.  From time to time he reminded them of his general directions.  He dealt with the evidence by breaking it into groups or types, and he explained how it could be used: at 70-72.  There is no criticism that can reasonably be made of these general directions.

8. One complaint by Mr Cuthbertson is that the Judge failed to tell the jury that no one item of evidence could be corroborative of the evidence of Mr Vlassakis, standing alone.  I do not agree, although in some particular instances there might be some force in that point, or some comment to that effect might be called for.  But having regard to the overall nature of the case, and the reliance on circumstantial evidence as corroborative, there is nothing of significance in that point.

9. Subject to that, and having regard to the written outline on which Mr Cuthbertson relied, the complaint appears to be by and large a complaint about the force of the evidence, and whether it was corroborative of Mr Wagner’s guilt of murder, as distinct from indicating his involvement in a lesser offence.  But to raise the possibility that it might do no more than point to guilt of some lesser offence is not to deny that the evidence might have the required effect of pointing to Mr Wagner’s guilt of murder.  It is merely to identify a matter that the jury had to consider, and this was a matter that the Judge frequently brought to their attention.

10. Doing the best I can, I am unable to find any arguable basis for attacking the Judge’s directions in relation to the corroboration of Mr Vlassakis.  I consider that the Judge gave the jury the guidance that they required.  It is again of some significance that no further directions were sought on this topic also.

11. In my opinion these grounds of appeal are not reasonably arguable.

    The corroboration warning relating to Ms Elliott

12. This ground of appeal is raised by ground 83 of Mr Wagner’s grounds of appeal.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. This ground is not reasonably arguable.  Leave to appeal should be refused.

    Other grounds or aspects of grounds not the subject of oral submissions

19. 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.

20. 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.

21. The complaint is that, in isolation, the evidence relating to the recording of Michael Gardiner’s voice and its use could not lead to the suggested conclusion.  It needs to be borne in mind that in giving this direction, and in relation to this evidence, no reliance was placed on evidence of voice recordings in connection with other deaths.

22. I consider that the jury were entitled to draw the inference that the prosecution sought to draw from this evidence.  If the jury were satisfied that Michael Gardiner was murdered at about the time he disappeared, and that the voice on the recording was that of Michael Gardiner, it was indeed an obvious inference that his voice had been recorded before his death to be used to conceal his death.

23. This ground is not arguable.

24. Mr Wagner by ground 37 and Mr Bunting by grounds 6 and 7, complain about the admission of evidence from Ms Penner that before his death she was told by Thomas Trevilyan that “he and two other friends were involved in killing Barry Lane”: at 368.  The evidence was led by the prosecution to show that Thomas Trevilyan was involved in that killing, which in turn was used to support an inference that Thomas Trevilyan was killed because of his knowledge of the involvement of the accused, and because of an apprehension that he was about to disclose that knowledge.  The complaint relates to the reference to the two other friends.

25. The Judge directed the jury that they could not use the evidence as evidence that Thomas Trevilyan and two other friends were actually involved in the killing: at 368.  He made it clear that the material could be used only as evidence of Barry Lane’s knowledge of the killing.

26. The submission appears to be that the evidence should have been excluded because it was of limited probative value, but was highly prejudicial because of the reference to the friends of Trevilyan.  I do not agree that the evidence was of limited probative value.  The Judge did not err in failing to exercise his discretion to exclude the evidence, and the direction that he gave to the jury was correct.

27. This ground is not reasonably arguable.

28. By grounds 50 and 52 Mr Wagner complains of a direction by the Judge that evidence on a tape recording that Mr Bunting and Mr Wagner required certain victims to address them deferentially while they were killing them, was capable of supporting evidence of Mr Vlassakis to the effect that when Mr Bunting and Mr Wagner were killing Troy Youde, they required him to address them deferentially.  The Judge dealt with this at 430.

29. In my opinion it is not reasonably arguable that this evidence called for what is sometimes called a similar fact direction.  In the circumstances, if the jury were satisfied that the recorded voices were those of Mr Bunting and Mr Wagner, requiring other deceased to address them deferentially, they were entitled to use that evidence in the manner suggested.  A similar fact direction was not called for, and would have been of no assistance to the jury.

30. In my opinion these grounds are not reasonably arguable.

31. By ground 6 Mr Wagner complains about the fact that on various occasions during the course of the summing up the Judge told the jury, when dealing with a particular point, that no submission had been made by defence counsel contrary to the submission put by counsel for the Director.  He identifies about 20 such occasions.  The complaint is that the jury might have interpreted these remarks as indicating that the defence had no answer available, or could say nothing of any use.  The complaint is that the balance of the summing up was affected, and that it was unfair for this reason.

32. There is no substance at all in this point.  In the course of a long summing up, occasional comments to this effect would not assume any particular significance in the mind of the jury, in my opinion.  The Judge was doing no more than giving the jury appropriate assistance in this respect.

33. This ground is not reasonably arguable.

34. By grounds 8 and 9 Mr Wagner complains that the Judge erred in his directions to the jury as to the elements of the offence of assisting an offender.

35. The first complaint raised by these grounds is that when canvassing the evidence relating to individual counts, the Judge did not bring to the jury’s attention, with sufficient emphasis, the possibility that the evidence might support a conviction for the lesser offence of assisting an offender.  Mr Cuthbertson also complains that the Judge did not direct the jury that it would suffice for the purpose of the lesser offence that Mr Wagner believed Mr Bunting to have been guilty of an offence other than murder, and with that belief had assisted in the disposal of property.

36. As to the first complaint, in my opinion it lacks substance.  The Judge reminded the jury on a number of occasions of the possible alternative verdict.  There was no need for more detailed reminders than the Judge gave.  I refer by way of example to the summing up at 138, 173, 191, 358 and 407.

37. As to the second point, it is true that the Judge’s direction to the jury was in terms of one offender being guilty of murder, and of the other offender knowing of that crime, and assisting him to escape apprehension: summing up at 18-19.  No complaint was made about this aspect of the summing up at the time.  In the circumstances of this case, reference to guilt of some lesser crime than murder was unnecessary.  As to the latter point, on various occasions the Judge referred to what he called opportunistic involvement in taking the property of a victim, and this sufficiently indicated to the jury that assisting an offender to escape apprehension or assisting an offender in disposing of the property of a victim was a sufficient basis for a conviction of the lesser offence.  These grounds are not reasonably arguable.

38. By ground 10 Mr Wagner complains of the following comment by the Judge at 230-231:

    “During the course of submissions, counsel from time to time have raised a number of possibilities for you.  Whenever you are dealing with these types of situations, one can always think up and envisage possibilities; this could have occurred or that could have occurred.  What you are concerned with is possibilities that reasonably arise out of the evidence.  That is what you are required to consider.  You need to avoid speculation which has no foundation in the evidence.  It is very easy to start casting around for various possibilities, but you are concerned with considering possibilities that reasonably arise on the evidence and not with speculating.”

    The complaint is that this direction was wrong, because in considering whether the prosecution has proved its case beyond reasonable doubt, a jury is not restricted to reasonable possibilities that arise on the evidence.

39. I consider that there is nothing in this point.  The Judge’s general directions about the burden of proof and the degree of proof required were clear, and beyond any criticism.  The applicants did not give evidence at trial.  Submissions were made for the defence, some of which arguably did not arise from the evidence.  It was appropriate for the Judge to make the point that he made.  There is no substance in this ground.

40. By ground 13 Mr Wagner complains that the Judge left to the jury as relevant evidence, evidence from a Mr Sinclair that in the course of a conversation Mr Wagner had said that “they” (meaning Mr Bunting and Mr Wagner) could make a person disappear, and that in the course of the same conversation Mr Wagner had said that “they had taken someone for a drive and that he had not come back”.  The Judge told the jury to exercise great care in drawing the link between this remark and the death of Ray Davies, because of the time that had elapsed since his death, but that they might use the conversation “as a piece of circumstantial evidence to be taken into account in deciding whether you are satisfied that the accused did take Ray Davies for a drive”: at 147.  I agree that the link is a slender one, but in my opinion it cannot reasonably be argued that the Judge was not entitled to leave this evidence to the jury for their consideration.  As I said, he told the jury to exercise great care in drawing a link between the statement and the death of Ray Davies.

41. By ground 7 of Mr Wagner’s grounds of appeal, and by grounds 1, 2 and 3 of Mr Bunting’s grounds of appeal, complaint is made, in effect, that the whole case and summing up were so lengthy and complicated as to overwhelm the jury, making it impossible for them to discharge their tasks satisfactorily.  This is said to have given rise to a miscarriage of justice.

42. The answer made by the prosecution is that the case while lengthy, was not particularly complicated.  There were many common issues.  The summing up was clear and accurate.  The trial was conducted in a manner designed to assist the jury.  While lengthy, the case was not unduly complex, and there was no practical alternative to a lengthy trial.

43. This matter was argued relatively briefly.  On reflection, I am of the view that it requires further consideration.

44. I would direct that this matter be the subject of further submissions, before the Court as presently constituted.  Further submissions would be heard on the basis that on this ground the hearing of the application for leave to appeal would be treated as the hearing of the appeal.  I consider, subject to further submissions, that this ground can be adequately considered on the basis of the material presently before the Court.

    Other matters

45. In his reasons at [630]-[670] the single Judge deals with matters raised by Mr Bunting in grounds 9, 10, 11 and 12 and beyond those grounds of appeal.  Those latter complaints do not appear to be properly before us.  In any event, I am content to adopt the single Judge’s conclusions that none of these matters gives rise to an arguable ground of appeal.

46. I also adopt the reasons of the single Judge for concluding that the grounds of appeal do not raise a question of law alone, within the meaning of s 352(1)(a)(i) of the Criminal Law Consolidation Act.

47. Standing back from the case for a moment, my view is that the prosecution case was a very powerful one.  There was very strong evidence of a joint enterprise involving Mr Bunting and Mr Wagner, and later, Mr Vlassakis and others.  Despite the length of the case, its complexity arose only from the number of counts and from the amount of circumstantial evidence that had to be led.  From another point of view, it might be said that the case was relatively straightforward.  When all the pieces were put together, there was very clear evidence of a joint enterprise of the kind relied upon by the prosecution.

48. The large number of grounds of appeal should not be allowed to divert attention from the fact that many of them are ultimately based on the same underlying proposition.  And, as my reasons have demonstrated, again and again they come down to the manner in which the Judge explained things to the jury.

49. 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

50. 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.

51. Apart from that I would refuse leave to appeal on all other grounds.

52. 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.

53. GRAY J:               I agree with the orders proposed by Doyle CJ and with his reasons.  I have nothing further to add.