R v Bunting and Wagner - [2004] SASC 235

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BUNTING AND WAGNER
Reasons for Decision of The Honourable Justice Perry
11 August 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
APPLICATION FOR LEAVE TO APPEAL - MURDER
The applicants sought leave to appeal against their convictions on multiple counts of murder - held that none of the proposed grounds were reasonably arguable - applications dismissed.
Criminal Law Consolidation Act 1938 s 278, s 352(1)(a)(i), s 352(1)(a)(ii), s 353(1) and s 367, referred to.
R v Bunting and Ors (No 3) Judgment No [2003] SASC 251; R v Garret (1988) 50 SASR 392; Wilson v Grimwade (1994) 73 A Crim R 190; R v Sutton (1984) 152 CLR 528; R v Gillard and Preston Judgment No [2000] SASC 454; Ahern v The Queen (1988) 165 CLR 87; R v Gunn and Howden (1930) 30 SR (NSW) 336; Phipson on Evidence 10th Ed (1963) page 124, par 263; Reg v Finn and Niblock [1985] 1 Qd R 212; M v R (1994) 181 CLR 487; Jones v R (1997) 191 CLR 439; R v Bunting and Wagner (No 8) Judgment No [2003] SASC 256; R v O'Neill (1987) 48 SASR 51; R v Bunting and Wagner (No 4) Judgment No [2003] SASC 252; Da Costa v The Queen (1968) 118 CLR 186; Williams v The Queen (1986) 161 CLR 278; Reg v Jenkins [1970] Tas SR 13; R v Blick (1999) 108 A Crim R 525, considered.

R v BUNTING AND WAGNER
[2004] SASC 235
Criminal
PERRY J
INDEX
1.    INTRODUCTION
2.    FACTUAL BACKGROUND
2.1      General
2.2      Chart
2.3      Use and movement of barrels
2.4      The Ford Marquis
2.5      The U-Store-it Facility
2.6      The rock spider wall
3.    SUMMARY OF EVIDENCE AS TO EACH COUNT
3.1      Counts 1 and 2 - Clinton Trezise
3.2      Count 3 - Ray Davies
3.3      Count 4 - Suzanne Allen
3.4      Count 5 - Michael Gardiner
3.5      Count 6 - Barry Lane
3.6      Count 7 - Thomas Trevilyan
3.7      Count 8 - Gavin Porter
3.8      Count 9 - Troy Youde
3.9      Count 10 - Frederick Brooks
3.10    Count 11 - Gary O’Dwyer
3.11    Count 12 - Elizabeth Haydon
3.12    Count 13 - David Johnson
4.    PROPOSED GROUNDS OF APPEAL
4.1      Joinder
4.2      Severance
4.3      Separate trials
4.4      Use of evidence re the deaths of Brooks, Youde and Johnson with           respect to the alleged murder of Elizabeth Haydon
4.6      Circumstantial evidence - Adequacy of directions
4.7      Comparison of voice recordings
4.8      Taking and sharing of property - Accessing Centrelink           benefits - Creation of false stories
4.9      Davies - Admissions by Bunting and Wagner.
4.10    Davies - Listing of names
4.11    Comment by trial judge where no submission by defence counsel
4.12    Evidence of Vlassakis
4.13    Unsafe and unsatisfactory
4.14    Other complaints made by Bunting
5.    A QUESTION OF LAW ALONE
6.    CONCLUSION
1.     INTRODUCTION

These reasons deal with two applications for leave to appeal from convictions for murder.
John Justin Bunting and Mark Ray Haydon were charged jointly with the murder of Clinton Trezise, alleged to have been committed in 1992. Robert Joe Wagner was charged with assisting offenders in connection with the murder of Trezise.
Additionally, Bunting, Haydon and Wagner were jointly charged with a further 11 counts of murder said to have been committed between December 1995 and May 1999.
At a pre-trial hearing, all three accused sought orders that they be tried separately from the others. There were also applications for severance of counts.
The trial judge made orders which separated the trial of Haydon from the trial of Bunting and Wagner.[1]
[1] The trial of Haydon started recently and is still in progress.
However, he ordered that Bunting and Wagner be tried together on the 11 counts of murder upon which they remained jointly charged, and that the two counts relating to Trezise be tried at the same time.
This meant that Bunting was tried on 12 counts of murder, including Trezise, and Wagner on the 11 joint charges of murder, together with the charge of assisting an offender with respect to the murder of Trezise.
Neither of the applicants gave evidence at the trial.
On 8 September 2003, at the conclusion of the trial, Bunting was convicted by a jury of eleven counts of murder. These were with respect to 10 of the 11 joint counts, together with the count relating to Trezise. Wagner, who had pleaded guilty to three of the joint counts of murder, was found guilty by the jury of a further seven of the joint counts of murder.
On one of the joint counts, that relating to the alleged murder of Suzanne Allen, the jury failed to reach agreement.
On the charge against Wagner of assisting an offender, the jury entered a verdict of not guilty by direction.
The trial judge imposed the mandatory sentence of life imprisonment on each count upon which the two defendants had been convicted.
On 29 October 2003, for reasons which he then published, as to both defendants, the trial judge declined to fix a non-parole period.
14Both defendants now apply for leave to appeal against the convictions.
15The right of appeal is governed by s 352 of the Criminal Law Consolidation Act 1935 (“the CLCA”). Relevantly that section provides:
“352(1) Appeals lie to the Full Court as follows:
(a)if a person is convicted on information-
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the leave of the Full Court or on the certificate of the court of trial that it is a fit case for appeal; .....”
16No certificate was given by the court of trial that in the case of either defendant, there is a fit case for appeal.
17Pursuant to s 367 of the CLCA, the powers of the Full Court to give leave to appeal may be exercised by a judge of the Supreme Court.
18I entertained the applications for leave to appeal pursuant to the powers conferred by that section.
19In ordinary cases, applications for leave to appeal would be dealt with at a brief hearing. Extended argument would not usually be entertained.
20These are not ordinary cases. The joint trial proceeded over about nine months between October 2002 and July 2003. Addresses of counsel extended over some 17 days, and the trial judge’s summing up over the equivalent of about 13 days. The trial transcript exceeded 10,000 pages, and the summing up 721 pages of transcript.
21Before the trial began the trial judge presided over a lengthy voir dire hearing. After the conclusion of the trial, the trial judge published nine sets of reasons supporting rulings which he had made as to the conduct of the proceedings.
22I heard the applications for leave to appeal by the two applicants, separately.
23Wagner was represented by counsel, whom I heard in support of some 84 grounds of appeal which were raised by him.
24Although initially represented by counsel, Bunting became unrepresented before the application came on for hearing.
25At first, Bunting indicated that he would proceed with the appeal on the basis of draft grounds (“the draft grounds”) and a draft outline of argument which had been prepared before counsel ceased to represent him, to which he would add some additional grounds.
26Subsequently, with what I take to be the pro bono assistance of one of the two counsel who represented him at the trial, Ms Elizabeth Sheppard, Bunting offered a further document headed “Applicant John Bunting’s Consolidated Grounds of Appeal” (“the consolidated grounds”). This was accompanied by an outline of argument, structured to correspond with the consolidated grounds.
On the hearing of the appeal, in oral argument, Mr Bunting put forward other complaints not covered in the draft grounds or the consolidated grounds.
Finally, after the completion of argument on the hearing of the appeal, Mr Bunting wrote a letter to the Court, dated 4 June 2004, in which he made a number of further complaints, in most instances not specifically relating to the grounds previously raised.
In view of the fact that Bunting was unrepresented, I have put aside possible technical objections - in any event, none were raised by the Crown - and I have endeavoured to address the substance of all of the complaints which he has made, in whatever form they have been advanced.
For convenience, I have considered the main arguments raised by both applicants in groups of related grounds. Under each heading I have given the reference to the appeal ground, whether raised by either or both of the applicants.
Mr Cuthbertson QC, leading counsel for Wagner, contended that a number of the grounds raised on his client’s behalf involved questions of law alone within the meaning of s 352(1)(a)(i) of the CLCA. It will be seen that I do not accept that submission.
I take the same view with respect to the grounds raised by Bunting.
It follows that disposal of the applications in both cases involves the exercise of a discretion as to whether or not leave should be granted.
Given that upon my refusal of the applications both applicants are entitled to have their applications reconsidered and determined by the Full Court, I took the view that I should prepare reasonably substantial reasons (although not exhaustive or full reasons) for the course which I have taken.
I recognise that to prepare reasons of this length on an application for leave differs from the course ordinarily taken in such cases. In ordinary cases, no reasons would be given if leave is granted, and brief reasons may be furnished in the event of a refusal of leave.
But it seems to me that in this particular case, if the matter should go to the Full Court for reconsideration of the applications, the Full Court should have the benefit of an overview of the case and of the essential reasoning which lies behind the conclusions which I have come to.
I stress that I have been mindful at all times of the court’s role in considering applications for leave to appeal. The fact that I have seen fit to prepare extended reasons should not be regarded as an indication that I have done other than consider whether any of the proposed grounds are reasonably arguable.
Neither have I in any way attempted to pre-empt the possible application of the proviso (CLCA s 353(1)). The potential application of the proviso is entirely a matter for the Court of Criminal Appeal should it become seized of an appeal. It is an irrelevant consideration at this stage.
Wagner wishes to raise 84 grounds of appeal.
In his draft grounds Bunting raises 16 grounds. His consolidated grounds amount to 12.
I do not give reasons for my ruling on every ground. I have done so only with respect to the major arguments which were advanced. But I have considered all of the grounds.
The arguments, particularly those put forward by Mr Cuthbertson QC, at times assumed the dimensions of an argument which might be developed on the hearing of a full-blown appeal. While I did not attempt to restrict the presentation of any argument, I have considered them only to the extent necessary to determine whether any of them raise an arguable point.
It would not be possible to understand the points raised in the grounds of appeal without some sort of understanding of the complex factual background to the various murders.
I therefore commence by giving a factual overview.
2. FACTUAL BACKGROUND
2.1 GENERAL
On 20 May 1999, police officers entered the disused State Bank building at Snowtown.
In the vault of the bank they found eight decomposing bodies in six barrels. As well, they found handcuffs, knives, gloves and other items which had been used in the torture, mutilation and murder of victims.
There was evidence that the bank premises were the subject of a written rental agreement in the names of Bunting and Mark Lawrence. Lawrence was Mark Haydon’s surname which he used until he married Elizabeth Haydon. On the rental agreement, the address of Mark Lawrence was shown as 4 Blackham Crescent, Smithfield Plains, which was Mark Haydon’s home address.
Shortly after the discovery of the bodies in the bank vault, two more bodies were found buried in the back yard of a house property at 203 Waterloo Corner Road, Salisbury North. (I will refer to this property simply as “Waterloo Corner Road”.) At different times Bunting lived at that address, and also at 3 Burdekin Avenue, Murray Bridge, and 49 Bundarra Court, Craigmore.
The bodies found at Waterloo Corner Road were identified as those of Ray Davies and Suzanne Allen.
The body of Trezise had been found in a shallow grave at Lower Light in August 1994.
The body of another person, Thomas Trevilyan, was found hanging from a tree at Kersbrook in November 1997.
Police investigations following the discovery of the eight bodies in the bank vault and the two bodies at Waterloo Corner Road, led the police to believe that Trezise and Trevilyan had been murdered, and that their murders were part of a series which encompassed all twelve.
I should say something about James Vlassakis.
He was originally charged jointly with five of the 12 counts of murder. Following a preliminary examination, he was presented in the Supreme Court on an information in which he was charged with four counts of murder, to which he pleaded guilty.
The fifth count was discontinued.
Vlassakis co-operated with the police in their investigations, and gave statements to them.
He gave evidence for the Crown at the trial of the charges against Bunting and Wagner. His examination and cross-examination occupied many days.
His evidence supported the Crown case that there was a long-standing relationship between himself and Bunting, Wagner and Haydon.
He (and other witnesses) gave evidence of statements made by Bunting and Wagner which indicated that they shared a hatred of paedophiles and homosexuals. It was the Crown case that this hatred motivated them to commit at least some of the murders.
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.
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.
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;[2] 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.
[2] Accessing of Centrelink benefits by Bunting, Wagner or Haydon was proved with respect to eight of the victims.
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”.
The following chart, which deals with each of the 13 counts, gives an indication of some of the features of each murder said to be an expression of the underlying unity which the Crown alleges connected each of them, and at the same time implicated Bunting and Wagner (together with Haydon and Vlassakis).
2.2 CHART

Comments
Friend of Barry Lane and Wagner, and known to Bunting Lived in caravan at home of Suzanne Allen. Said to have interfered with grandchildren. Hung jury.

Voice recording

Property taken Caravan taken by Bunting and Wagner, sold by Bunting. Personal items. Car (given to Elizabeth Harvey). Furniture (sold by Wagner and Bunting). Personal items.

Social security claimed $33,500 (Bunting) $23,000 (Bunting, Jodie Elliott)

Found 16/8/94 Shallow grave Lower Light 26/5/99 Waterloo Corner Road 23/5/99 Waterloo Corner Road

Last seen alive Aug 1992 Late 1995 Nov 1996

Alleged offence
dates 9/7/92 - 31/8/92 25/12/95 - 21/1/96 20/11/96 -
10/12/96

Accused Plea or verdict BUN         G WAG       NG
by direction BUN         G
WAG         G BUN       Not
WAG   Agreed

Deceased Clinton TREZISE é
Assisting Ray DAVIES Suzanne ALLEN

Count 1 2 3 4

Comments
Homosexual Said to be a paedophile. Abused Wagner. Young man who had lived with Lane. Friend of Vlassakis. Into drugs.

Voice recording Yes (Inferentially) Yes (Inferentially)

Property taken Wallet (cards in Marquis and notebook with Bunting). House ransacked. Other property not traced. Car and personal papers to Bunting. Keycard and other personal items to Wagner. No - except for hat in Bunting’s ceiling. Lounge suite (Bunting). Car (Wagner). Personal items - Bunting and in the Marquis. Wagner had post-death generated papers.

Social security claimed No, but reported missing $15,400 (Wagner) $11,790
(Bunting, Vlassakis and Haydon

Found 20/5/99
Barrel / bank 20/5/99
Barrel / bank 5/11/97
Tree / Kersbrook 20/5/99
Barrel / bank

Last seen alive Sept 1997 Oct 1997 4 Nov 1977 April 1998

Alleged offence dates 31/8/97 - 17/9/97 15/10/97 - 15/11/97 3/11/97 - 6/11/97 3/4/98 - 8/4/98

Accused Plea or verdict BUN         G
WAG         G BUN         G
WAG      P/G BUN         G
WAG         G BUN         G
WAG         G

Deceased Michael
GARDINER Barry LANE Thomas TREVILYAN Gavin PORTER

Count 5 6 7 8

Comments
Son of Elizabeth Harvey. Stepbrother of Vlassakis. Said to have sexually assaulted Vlassakis. 17 year old son of Jodie Elliott (who had relationship with Bunting). Intellectually disabled. Lived near Bunting at Murray Bridge. Wife of Mark Haydon. Sister of Jodie Elliott. Said to have dated 13 year old girl.

Voice recording Yes Yes (includes Wagner) Yes (includes Wagner) Yes Yes

Property taken Documents with Bunting, Haydon and in bank vault. Documents with Bunting. Backpack in bank. Wagner had post-death generated papers. TV to Wagner, lounge suite to Haydon, bed, chest of drawers, fridge and Keycard to Bunting Keycard at Wagner’s house . Car to Bunting then Jodie Elliott then Haydon. Keycard to Bunting. Car radio, TV, stereo, CDs and magazines to Wagner

Social security claimed $2,950 (Initially Vlassakis, then Bunting $5,380 (Haydon) $4,790 (Bunting) No, but reported missing $390 by Vlassakis, and arrested soon after.

Found 20/5/99
Barrel / bank 20/5/99
Barrel / bank 20/5/99
Barrel / bank 20/5/99
Barrel / bank 20/5/99
Barrel / bank

Last seen alive Aug 1998 17 Sept 1998 28 Oct 1988 20-22 Nov 1998 ? 9 May 1999

Alleged offence dates 25/8/98 - 8/9/98 16/9/98 - 19/9/98 27/10/98 - 14/11/98 20/11/98 - 26/11/98 9/5/99

Accused Plea or verdict
BUN         G
WAG         G

VL         P/G

BUN         G
WAG         G

VL         P/G

BUN         G
WAG         G

VL         P/G
BUN         G
WAG         G
BUN         G
WAG      P/G

VL         P/G

Deceased Troy YOUDE Frederick BROOKS Gary O’DWYER Elizabeth HAYDON David JOHNSON

Count 9 10 11 12 13
2.3     USE AND MOVEMENT OF BARRELS

During the course of the trial, the Crown called a considerable body of evidence to explain the use of the barrels and their movement, culminating in their discovery in the bank vault.

The principal evidence as to the barrels was given by Vlassakis and by two witnesses, Mr and Mrs Freeman, who lived at Hoyleton and subsequently at Snowtown.
Vlassakis’ evidence on this topic commences with an occasion in March or April 1998 when he says that Bunting showed him the body of Gavin Porter in a shed at Bunting’s house at 3 Burdekin Avenue, Murray Bridge.
Vlassakis’ evidence was that while in the shed, Bunting pointed to a barrel which he said contained two bodies: those of Michael Gardiner and Barry Lane.
On a later occasion, Bunting came to 3 Burdekin Avenue, driving a Ford Marquis motor car (“the Ford Marquis”). Vlassakis was present and helped to remove a barrel from the back seat of the Ford Marquis into the shed.
This meant that at that stage there were two barrels in the shed at 3 Burdekin Avenue.
The Crown case was that Troy Youde was murdered in late August 1998, and his body was put in another barrel in the shed. Evidence to that effect was given by Vlassakis. As a result, there were then three barrels in the shed at that address.
Vlassakis gave evidence that the three barrels were later moved from the shed at 3 Burdekin Avenue to a shed at Haydon’s property at 4 Blackham Crescent, Smithfield Plains. This was at about the time that Bunting was moving in with Elizabeth Harvey to another house in Burdekin Avenue, namely number 26.
Vlassakis says that he saw the three barrels in Haydon’s shed at 4 Blackham Crescent.
At about the time that police inquiries commenced into the disappearance of Elizabeth Haydon in late 1998, Vlassakis gave evidence that there was an occasion when Bunting turned up at Murray Bridge with another barrel in the back of the Ford Marquis, saying that “The shit had hit the fan”.
Police had already by then attended at Blackham Crescent but had not made a search of the premises; they had only sought to interview Haydon and Jodie Elliott, Elizabeth Haydon’s sister.
At all events, putting aside the possibility that Elizabeth Haydon was dead by that time, that is, late November 1998, the Crown case was that there were six bodies stored somewhere at that stage, namely the bodies of Michael Gardiner, Barry Lane, Gavin Porter, Troy Youde, Fred Brooks and Gary O’Dwyer. The Crown case was that before the police started to make inquiries into the death of Elizabeth Haydon, those bodies were in five barrels stored at Blackham Crescent. Elizabeth Haydon’s body, in another barrel, would bring the total to seven bodies in six barrels, stored at Blackham Crescent.
There was evidence that a Land Cruiser or four-wheel drive belonging to Haydon was parked at his premises at Blackham Crescent.
Jodie Elliott’s evidence was that in about late November 1998 she remembered an occasion when the Land Cruiser, which was usually parked at the front of the premises, was reversed to the garage, where she saw it put onto a trailer.
The Crown case was that the Land Cruiser was then loaded up by Bunting, Wagner and Haydon with barrels. Having regard to its capacity, it could take only five barrels.
This left one over. It was the Crown case that that was the barrel brought up in the Ford Marquis to Murray Bridge by Bunting. The barrel was transferred to a Sigma belonging to Bunting parked at the rear of Vlassakis’ house at Murray Bridge.
From early in 1998, Deren and Angela Freeman were living at an address at Hoyleton. Wagner and Bunting had together on occasions visited them there.
Bunting approached the Freemans to ask whether he could store a four-wheel drive vehicle (the Land Cruiser) at the Hoyleton property. He told a story of having bought the vehicle, that it had been used as a roo shooting vehicle, that it “stank a bit”, and that he needed somewhere to put it due to complaints from neighbours as to the smell.
The Freemans allowed the vehicle to be stored at the Hoyleton property. It was brought up by Bunting and Wagner in the early hours of one morning. The Land Cruiser was on a trailer towed by the Ford Marquis.
The evidence of Mrs Freeman was that she could not approach close to the Land Cruiser because the smell was “overwhelming”.
Mr Freeman approached closer to the Land Cruiser and saw a blanket draped over what he thought were barrels.
The Crown case was that the five barrels containing the bodies of seven deceased were in the Land Cruiser stored at Hoyleton and the sixth barrel was in the Sigma at Murray Bridge, and that the barrels had all been moved out of the shed at Haydon’s home at Blackham Crescent when police investigations intensified as to the disappearance of Elizabeth Haydon. [See SU 264]
The evidence was that Mr and Mrs Freeman moved to Snowtown early in 1999. Not without some objections, they allowed the Land Cruiser to be taken on to their property at Snowtown. The Crown case was that from the Freemans’ property at Snowtown, when the bank was leased by Bunting, the barrels were moved into the bank vault.
2.4 THE FORD MARQUIS
At the time of his arrest and for much of the time over which the murders were committed, Wagner lived at 36 Mofflin Road, Elizabeth Grove. Following his arrest, the Ford Marquis was found parked in the back yard of Wagner’s house at Mofflin Road. In the Marquis was a large quantity of papers, being personal papers relating to a number of the victims of the murders. Some of the papers were found in a bum bag on the front floor of the car.
In May 1997, the Ford Marquis was registered in the name of Laura Martin, which was an alias of Elizabeth Harvey, with whom Bunting associated. The registration was renewed in her name on 29 December 1998.
Bunting and Vlassakis used the car extensively for some time following the death of Elizabeth Haydon, namely some weeks after 21 November 1998. Later, however, the evidence suggested that Wagner took the vehicle over and was seen to be driving around in it, but it was still used to some extent by Bunting.
Wagner told Mills that he had bought the car for $500 and was paying $50 per fortnight for it and that he was buying it from Bunting.
The documents found in the Ford Marquis assumed considerable importance during the course of the case. The personal papers included various Centrelink documents relating to certain of the victims of the murders, credit cards and bank access cards.
2.5 THE U-STORE-IT FACILITY
The rental agreement relating to this facility was tendered at the trial. [SU 46]
There was evidence that in December 1996 the unit was rented to a person who gave the name John Bunting.
Fingerprints of Bunting were found on the rental agreement. The hand writing and signature on it were those of Bunting.
In the document there is a heading “Alternate Contact”. Under that heading was given an address, Bingham Street, Elizabeth East, and a phone number. Mrs Durrant, Robert Wagner’s mother, gave evidence that that was her address and phone number.
Mrs Durrant gave evidence that she visited the U-Store-it unit with Wagner at the time he was living with her at that address. When shown the rental agreement, she identified the details given under the heading “Alternate Contract” as being in her son’s hand writing. Her evidence was that Wagner had told her that Bunting had asked him to pay the rent.
That he had paid the rent was confirmed by Vicki Mills, who was present on one or two occasions with Wagner when he paid it.
The U-Store-it facility was found by the investigating police to contain a number of incriminating items. I will refer to some of them in due course.
2.6 THE ROCK SPIDER WALL
For a time Bunting lived at Waterloo Corner Road with his then wife, Veronika Tripp.
Her evidence was that there was a room in the house which she described as the third bedroom, used for storage of junk and other items. Yellow post-it notes were stuck on a wall of the room with pieces of wool linking them up. Mrs Tripp identified the pieces of wool as wool which she had given to Bunting.
Vlassakis gave evidence that he had seen the wall to which was applied yellow post-it notes with names written on them. He said that Bunting described it as “the spider wall” or “a wall with spiders”.
Vlassakis said that from time to time Bunting would add names to the wall and remove them.
Mrs Freeman regularly visited Bunting at his house at Waterloo Corner Road. She said that she had seen the so-called spider wall. Her evidence was: [T1785 et seq]
“A.Cards with names - they all varied. Some had names, some had names, some had names and phone numbers and addresses, descriptions about people and all different things. They were set up like a family tree. He called it the wall of spiders. There was actually two. There was one large one, which was actually on the main wall, that started with one card and then sort of branched out, like a family tree. It was supposedly set up that the centre one was the person that started this, so it was the original paedophile within this family, and then it branched out to the next person, like people that that person had sexually abused, and then people that these people had sexually abused, and so on, and it just went out in this big tree. On another wall was just cards of supposed paedophiles, they weren’t sort of associated with this other family tree.
Q.The wall, with what you describe as a family tree, were the cards joined together in any way.
A.Yes, they were.
Q.How.
A.With string.
.....
Q.And, on the other wall, are we talking cards again.
A.Yes.”
Mrs Freeman’s evidence was that she saw Bunting on occasions close his eyes and remove a card from the wall. He would then ring the person named on the card and abuse them, describing them as “dirties”. She was able to hear the response from those he rang on some occasions. Some of them said words to the effect of, “Why are you doing this to me? Leave me alone”. [SU 52]
After Bunting’s arrest, police located 21 yellow post-it notes and a quantity of Blu-Tak and pieces of wool in the U-Store-it unit. These items were identified by Vlassakis, Mrs Freeman and Ms Tripp as items which had been on the “spider wall”.
Other documents were found in the U-Store-it unit, some of them written in the hand writing of Bunting. One in his hand writing was a list, which Bunting had told Vlassakis was a list of people that one of the victim’s of the murders, Barry Lane, had taught to be paedophiles.
Other documents related to another victim, Ray Davies. Evidence was given by Ms Tripp that she had seen a chart which Bunting told her was a list of people who knew Barry Lane, and that “some of them had done horrible things to children”. [T4321]
It is convenient at this stage to summarise the salient features of the evidence associated with each murder.
3. SUMMARY OF EVIDENCE AS TO EACH COUNT
3.1 COUNTS 1 AND 2 - CLINTON TREZISE
The body said to be that of Trezise was found buried in a shallow grave at Lower Light on 16 August 1994.
A post-mortem examination revealed fractures of the skull consistent with blows to the back of the head from a blunt object.
Trezise was last seen alive in August 1992.
Ms Raelene Brown gave evidence that she met Bunting and Wagner in late 1993 or early 1994 [T2982] and saw them frequently thereafter, usually when they were in the company of each other.
Her evidence was that Bunting was constantly talking of killing and murder, and made statements demonstrating a hatred of paedophiles and homosexuals.
Brown said that during the course of the conversations between Bunting and Haydon, the name Trezise “constantly came up” (“virtually every time I saw him”) [T2986] and that he was described as “gay”. She said that Bunting had said that Trezise “didn’t deserve to live”.
At the time that Trezise disappeared, Wagner and another man, Barry Lane, were living together in a homosexual relationship.
Trezise had previously lived with Lane.
On 27 August 1998, a television program called Australia’s Most Wanted showed a program, including footage of the skeleton at Lower Light, although there was no reference by name to Trezise. Vlassakis’ evidence was that he watched the program in the company of Bunting and Vlassakis’ mother, Elizabeth Harvey.
Vlassakis said that when the skeleton at Lower Light was depicted on the screen, Bunting said, “That’s my handiwork”. Vlassakis’ evidence was that later Bunting told him that he (Bunting) and Haydon murdered Trezise at Waterloo Corner Road, and that Lane and Wagner had assisted in burying the body. [SU126]
Vlassakis also gave evidence that on several occasions Wagner said, “We’ve buried someone out there”. Vlassakis said that Bunting referred to Trezise as “happy pants” and that he said that he had killed him as he was a paedophile.
Evidence of other admissions was given by Veronika Tripp, who married Bunting in September 1989, following which they lived together at Waterloo Corner Road. Veronika Tripp’s evidence was that:
(a)she had been told by Barry Lane that Bunting had admitted to Lane that he had killed a person by hitting him on the head with a shovel in the lounge room at Waterloo Corner Road and that he had subsequently buried the body at Lower Light; and
(b)that when she spoke to Bunting about the matter, he admitted that he had killed Trezise.
Ms Tripp suffered from an intellectual disability. The jury were given lengthy warnings as to how they should approach her evidence.
While Tripp’s evidence of her conversation with Lane was not evidence against Bunting, it was led to indicate that Lane was aware of the murder by Bunting of Trezise.
3.2 COUNT 3 - RAY DAVIES
Davies lived in a caravan parked at the rear of Suzanne Allen’s home at Salisbury North. He was last seen alive on Boxing Day, 26 December 1995, when he was seen by Suzanne Allen’s daughter, Annette Cannon.
On that day, Annette Cannon and her mother went to the Salisbury police station to report an alleged sexual assault by Davies on Annette Cannon’s son.
When they came back from the police station, Davies was not to be seen at the Salisbury North address. Ms Cannon did not see him again.
On 26 May 1999, police found Davies’ body buried in an area which had previously been covered by a tank stand in the rear yard of Waterloo Corner Road.
Three days earlier, they had located the body of Suzanne Allen at the same site.
Davies body was at a deeper level than that of Suzanne Allen. His body must have been buried first.
At the time that Davies disappeared, Bunting was living with Ms Tripp at Waterloo Corner Road. Wagner was a regular visitor to the premises.
Ms Tripp gave evidence of having seen Bunting dig a hole under the tank which stood on a stand in the back yard about two or three metres off the ground. [T4317] She said that while Bunting was digging, Wagner and Haydon were present, and emptied buckets of dirt. She said that Bunting told her that he was “digging a tunnel and that it was going to be a bomb shelter”.
She also gave evidence of seeing Wagner help Bunting weld together some sort of ladder, which was subsequently put down into the hole.
The evidence of Annette Cannon was that about two weeks after the day when Davies disappeared, she saw her mother, Bunting and Wagner cleaning out Davies’ caravan which was still in the rear of her mother’s premises. Barry Lane was watching. [T3623]
The three of them towed the van away from the premises, possibly using Lane’s station wagon. There was evidence that the caravan was towed to 14 Catalina Road, Elizabeth, then the address of Mark and Elizabeth Haydon.
Vlassakis saw it there, where it was finally cleaned out and sold by Bunting.
There was a written contract of sale. The purchasers gave evidence. There seems no doubt that it was Bunting who sold it in January 1996.
Items of personal property, including clothing which was identified as having belonged to Davies, were found in the U-Store-it unit, as was a length of cable stained with material said to give the DNA of Mr Davies, and disposable rubber gloves.
It was the Crown case that these items were discarded “rubbish” from Davies’ murder.
Documents connected to Davies were found in the black bum bag located in the rear of the Ford Marquis parked in the back yard of Wagner’s house. They included a birth certificate and a pensioner concession card.
Annette Cannon’s evidence was that she had a conversation with both Bunting and Wagner shortly after the caravan had been towed away. Bunting said that they had taken Davies for a drive and that Wagner was a passenger. Bunting said that he and Wagner were “pounding” Davies down. While this process was described, Wagner demonstrated, using his arms to show how he had pounded Davies down.
Her evidence was that Wagner and Bunting were both laughing about the incident as though “it was a great joke”.
Vlassakis also gave evidence of admissions by both Bunting and Wagner.
He said that Bunting explained how they used a pole “to weld him in the balls” and that Davies testicles had enlarged to double golf ball size. He said that both Bunting and Wagner showed him the pole that had been used.
Vlassakis said that Bunting’s account of the murder was that it was committed in a bedroom at Waterloo Corner Road and that Vlassakis’ mother had stabbed Davies “down the legs”.
Bunting showed Vlassakis a pair of handcuffs which he said had been used on Davies. At the time they were in a cabinet at Waterloo Corner Road.
Although some of the admissions described by Vlassakis were in the absence of Wagner, Wagner was present on other occasions when both Bunting and Wagner were “bragging” about the details of the murder of Davies.
3.3 COUNT 4 - SUZANNE ALLEN
While the jury did not agree on a verdict as to this count, some items of evidence led by the Crown with respect to the circumstances of her death and its aftermath might be regarded as forming part of the pattern which characterises the activities of the appellants throughout the relevant period spanning the twelve deaths.
There was no challenge at the trial to the fact that it was Suzanne Allen’s body which was found in the hole at the rear of Waterloo Corner Road, and that her body had been buried closer to the surface than that of Ray Davies.
A post-mortem of Ms Allen’s body indicated that her torso had been dismembered and de-fleshed. Her breasts and genitals were absent. Her head had been severed from her torso, and her right shoulder blade had been removed. Most of the skin and some of the tissue under it had been removed.
Much of the mutilation of the body was ragged and clumsily performed.
Some of Ms Allen’s hair was found entangled in a rope located with her body.
The last persons to see Ms Allen alive were her niece Sandra Davies and her partner Mr Manley. They visited Suzanne Allen at her home on 23 November 1996. They did not see her after that.
Over the next few days Mr Manley visited the house but no-one answered. Eventually they called the police and entered the house in the presence of police officers on 27 November 1996. Clothes and items were scattered about. Ms Allen was nowhere to be seen.
Ms Allen had earlier been in a relationship with Bunting. There was some evidence to suggest that he had tired of it and was irritated when she endeavoured to renew it.
Vlassakis gave evidence of some conversations with Bunting prompted by Vlassakis’ belief that property which had previously belonged to Suzanne Allen was seen by him at the house shared at the time by his mother, Elizabeth Harvey, and Bunting, at 10 Lohmann Street, Murray Bridge.
At first, Bunting denied that it was Suzanne Allen’s property and said that he and Elizabeth Harvey had bought it. However, Vlassakis’ evidence was that later Bunting said that it was in fact Suzanne Allen’s property, and that she had died of natural causes.
Vlassakis’ evidence was that Bunting said he had let himself in to Suzanne Allen’s house, accompanied by Wagner, and that they found her body in the bathroom. He said that Bunting had told him that he and Wagner had cut up the body (the expression used was “slice and dice”) and buried it in the hole in the back yard of Waterloo Corner Road.

Suzanne Allen’s car was given to Elizabeth Harvey.
Items of her furniture were sold by Wagner and Bunting.
I do not go into further detail of the Crown case concerning the alleged murder of Suzanne Allen, except to note that there was a systematic collection of Centrelink benefits in her name following her death, amounting to a total of some $23000, shared by Bunting and Jodie Elliott.
3.4 COUNT 5 - MICHAEL GARDINER
Michael Gardiner was a young man who was openly homosexual.
He agreed to look after the house of Nicole Zuritta at Fairfield Avenue, Elizabeth Grove, in September 1997. To another lady, Ms Van Gelder, he had said that he was interested in moving in with Ms Van Gelder in a house at Goolwa to which she was moving. [T4260]
He did not keep an arrangement he had made to meet up with her to make the move. He was last seen alive by Zuritta and Van Gelder during the first half of September 1997.
His body was one of those found in a barrel at the bank. The left foot had been cut from his leg. The detached foot was also in the barrel. There was rope tight around his neck.
Dr James, the pathologist, was of the view that the cause of death was strangulation by rope.
There were some marks on the skin of the body suggestive of thermal burns. These were in areas which included the scrotum.
Traces of methadone were found in the body, although there was no evidence to suggest that he used the drug.
Vlassakis gave evidence that in the course of conversations with him both Bunting and Wagner had spoken of Gardiner in disparaging terms, describing him as a homosexual.
Vicki (also known as Veronica) Mills said that at one stage she had a relationship with Wagner. [T4763] She gave evidence of a conversation with Wagner when the latter told her that he did not like Gardiner, as he was gay.
Vlassakis gave evidence of an admission by Bunting to the murder of Gardiner.
There was, however, no evidence that Wagner made a similar admission. Furthermore, he was not present when Bunting made the admission to which I have just referred.
Vlassakis’ evidence was that there was an occasion when Bunting and Wagner were at Burdekin Avenue when Bunting called Vlassakis into the shed at that property and showed Vlassakis the body of Gavin Porter. On the same occasion, Bunting showed to Vlassakis a barrel which he said contained the bodies of Michael Gardiner and Barry Lane. Wagner was not present in the shed at the time that Bunting showed the body in the barrel to Vlassakis.
However, Wagner pleaded guilty to the murder of Barry Lane, whose body was said by Bunting to Vlassakis, to be in the same barrel as that of Michael Gardiner.
Some time after Gardiner had disappeared, Ms Zuritta, who is a cousin of Vicki Mills, found Gardiner’s wallet under the bed in her house. Later, Ms Zuritta received a phone call from a male person who identified himself as a friend of Gardiner’s. He asked for the wallet.
When she said that he could come and get it, the same person rang a few days later. In all, there were about four calls seeking the wallet. Ms Zuritta refused to hand it over.
Later, Bunting asked Vlassakis to get the wallet from Ms Zuritta.
The wallet was later found by the police in May 1999 in the black bum bag in the Ford Marquis. Vlassakis’ evidence was that he had retrieved the wallet and given it to Bunting.
There was evidence that Wagner told Ms Zuritta, in the presence of others, that he had seen Gardiner at a service station in Prospect.
The Crown case was that this was a false assertion designed to create an impression that Gardiner was still alive.
In the same vein were phone calls received by Ms Zuritta and Mills from a person whose voice they identified as Gardiner.
Vlassakis said that he had been encouraged by Bunting to break into Ms Zuritta’s house to steal various items, and that it was Wagner who gave him the key to Ms Zuritta’s house to enable him to do so.
So that the case against Wagner with respect to the murder of Gardiner was essentially circumstantial. Apart from the matters to which I have referred, the other major item of circumstantial evidence was Wagner’s proven involvement with the bodies in the barrels at Snowtown, and with the various movements of the barrels on their way to Snowtown.
3.5 COUNT 6 - BARRY LANE
The Crown case against Bunting as to Lane’s murder included evidence from Vlassakis that Bunting had confessed to Lane’s torture and murder. The evidence was that Bunting had said to Vlassakis that Lane had been strangled by Wagner at Lane’s house and his body was then left there, wrapped in a carpet.
There was one conversation which involved both Bunting and Wagner, during the course of which Vlassakis said that both accused said that they had tortured Lane by squeezing his toes with a pair of pliers. Apparently they took pleasure in explaining that there was a difference in the apparent level of pain between squeezing the toe nail as opposed to the knuckle of the toe.
Bunting is also said to have told Vlassakis that Trevilyan had helped in the murder of Lane.
According to Vlassakis, Bunting said that he had made Lane ring his mother on the night of his murder to say that he was going to Queensland.
Lane’s mother gave evidence to say that she received such a call, and that while he was speaking she could hear voices in the background. [T4680-4681] They sounded like muffled voices, “giggling and laughing”. Her son sounded nervous; his voice did not sound normal.
Lane’s sister, Krystal Spencely-Smith, who lived in Queensland at the relevant time, said that at about the time her mother received a call, she received a call from her brother. He said that he was “on his way up” (to Queensland). He hung up before she could say anything. Lane’s sister said that his voice was very strained and he had used some expressions which he had not used before. [T4719]
The Crown alleged that the motive for the killing of Lane was that the accused believed him to be a paedophile who had abused Wagner at a young age. Furthermore, as I have pointed out in dealing with the alleged murder of Trezise, Bunting is alleged to have implicated Lane in the disposal of Trezise’s body. He therefore represented a risk.
There was evidence that after Lane’s death, the accused set about spreading false stories to give the impression that he had left the State. Evidence to that effect was given by a number of witnesses.
The Crown adduced evidence of the distribution of Lane’s property.
A blue Sigma wagon which had been registered in Lane’s name, was found by police at the home of the Freemans at Snowtown. The evidence of the Freemans was that it was Bunting who came to their house in the vehicle.
Other property belonging to Lane was found at Wagner’s house at Mofflin Road, Elizabeth Grove, and in the house occupied by Bunting, Elizabeth Harvey and Vlassakis at the time of the arrest of Bunting and Vlassakis, namely Bundarra Court, Craigmore.
Personal papers and documents, including Lane’s keycard wallet, Medicare card and social security concession card were found in the bum bag in the Ford Marquis.
Vlassakis saw Wagner using Lane’s keycard. After Lane’s death, Wagner accessed Lane’s Centrelink benefits. Wagner was observed by the police when he was attending at various ATMs. In all, Wagner withdrew Centrelink benefits in Lane’s name totalling $15,400.
The trial judge put the Crown case concerning the involvement of Bunting in Lane’s murder to the jury in this way: [SU 362]
“... the Crown invites you to start with the fact that together with Mr Wagner, Mr Bunting had Mr Lane’s body in a barrel at the bank. The Crown put to you that Mr Bunting had a compelling motive to kill Mr Lane. He was not only a paedophile, he had corrupted Mr Bunting’s best friend and he had knowledge of a previous murder. All the other evidence has to be viewed in that light, including the fact that Mr Bunting took possession of Mr Lane’s car and made use of it. Mr Bunting had the bulk of Mr Lane’s property at his home. Finally, the Crown invites you to rely upon the evidence of Mr Vlassakis that, in substance, Mr Bunting admitted to him that he was involved in the murder of Barry Lane.”
The trial judge went on to point out that Mr Griffin, counsel for Bunting, had emphasised that the jury should have grave reservations about the evidence of Vlassakis, and had suggested that there was “no other evidence pointing to Mr Bunting assisting Mr Wagner in the murder of Mr Lane”. Mr Griffin suggested that it was Trevilyan who had assisted Wagner in murdering Barry Lane, and that there was no evidence that would justify a conclusion that Bunting was involved.
As I have already noted, Wagner pleaded guilty to the murder of Barry Lane.
3.6 COUNT 7 - THOMAS TREVILYAN
On 5 November 1997, the body of Thomas Trevilyan was found hanging from a tree on the One Tree Hill to Kersbrook road. He was aged 18 years. The locality in which his body was found was described as fairly remote. The general area is heavily wooded.
The body was hanging from the tree by a rope secured very tightly around the deceased’s neck. Trevilyan’s boots were just touching the ground. It is likely that he had been standing on a milk crate which was kicked away so that the rope took the weight of his body.
It does not appear that anyone disputed at the trial that Trevilyan died through hanging.
The pathologist who conducted the post-mortem examination, Dr James, found no evidence of involvement of another person. The cause of death was hanging. [T1040] He described the case as exhibiting the classic features of suicide. He reached that conclusion partly because of the nature of the knot in the rope, the side of the neck from which the rope extended and the fact that, as is apparently common in cases of suicide, the noose was above the level of the voice box.
The Crown countered the suggestion of suicide by contending that this was not a case where they alleged that somebody was murdered and the body then strung up. On the contrary, the Crown case was that this was a murder which was made to look like a suicide.
It is obvious from the evidence that Trevilyan was a young man who from time to time had exhibited signs of a somewhat disturbed mental state. Indeed, it appears that he was diagnosed with schizophrenia at the age of 14. At about that time it appears that he attempted suicide on two occasions: the first by loading a gun and the second an attempt at hanging. He was under medication for schizophrenia.
Trevilyan often talked about the Army and constantly wore Army clothing.
In December 1996, less than a year before his death, there was a note in the records of the Women’s and Children’s Hospital to the effect that Trevilyan was “heading for a nervous breakdown”.
There was no dispute at the trial that Trevilyan had lived with Barry Lane for some months at Ross Road, Hectorville.
Vicki Mills, Wagner’s de facto partner, gave evidence that she first met Trevilyan in about October 1997 when Wagner brought Trevilyan to their house and said that Trevilyan would be staying with them. When Mills asked why, she said that he said, “... they’d got him away from Barry [Lane]”. Mills’ evidence was that she told Wagner that she did not want Trevilyan in the house, [T4788] but he insisted and said that Trevilyan would be there only “for a little while”.
Mills’ evidence was that while he was staying with them, Trevilyan’s behaviour was “weird”.
Matters came to a head when Mills’ daughter picked up a puppy in the back yard. Trevilyan took up a knife and chased Mills’ daughter and the puppy around the yard, saying he wanted to kill the dog. Mills’ evidence was that he said, “It’s just a mutt, it doesn’t deserve to live”. [T4789] The incident ended when a passer-by took the dog.
Later that day, Mills recounted the story to Wagner and Bunting when they came to the house.
That night, Trevilyan was driven from Wagner’s house by Wagner and Bunting. Wagner came home alone. He told Mills that they had dropped Trevilyan off at Gawler.
Mills’ reaction was to say, “Well, I want his stuff out”.
Mills dated this incident as Melbourne Cup Day, that is, Tuesday 4 November 1997.
The next day Mills received a phone call from a police officer to say that Trevilyan had committed suicide.
The Crown case against Bunting with respect to the murder of Trevilyan rested heavily on evidence of Vlassakis as to various admissions made to him by Bunting.
Vlassakis and Bunting often travelled together from Murray Bridge to Elizabeth via Kersbrook. Vlassakis said that during the course of some of those trips, Bunting mentioned that he had used Trevilyan to help murder Barry Lane, and that after Trevilyan had started to “fuck up”, they hung him out in a tree at Kersbrook.
Bunting recounted the story of Trevilyan and Mills’ daughter and the puppy. He said that Trevilyan had started to “schiz-out and lose the plot”.
Bunting said that he kicked out whatever it was that Trevilyan was standing on after he was tied to the tree, and that they had put money in Trevilyan’s pocket to make it look like suicide.
The police removed $6.90 in cash from Trevilyan’s body.
According to Vlassakis, Bunting showed him the general area of the tree where the hanging had occurred. This was while they were passing at a fairly fast speed, in Bunting’s car.
When Vlassakis was asked to point the area out to the police, he pointed out an area which was within 80 metres from the tree where Trevilyan was found hanging.
The judge directed the jury that there was no evidence that Wagner was present on the occasion when Bunting made any admissions concerning the murder of Trevilyan.
As for Trevilyan’s knowledge of the murder of Lane, the Crown called Trevilyan’s cousin, Lenore Penner. She said that shortly before his death Trevilyan called on her. He seemed very nervous and frightened. He told her that he and two other friends were involved in killing Barry Lane; that the body was put into the trunk of a car and subsequently into a 40 gallon drum and left. [T7627] That evidence was led only to indicate a knowledge on the part of Trevilyan of the killing of Lane.
Evidence was led that during the course of police inquiries, Wagner told a detective, Detective Bell, that he had told Trevilyan that he was no longer welcome at the house; that Trevilyan had responded by saying, “I might hang myself in your back yard”; that later he had seen Trevilyan leaving the house wearing his Army greens; and that that was the last he had seen of him.
That, of course, was a quite different story from the story which Ms Mills said she had been given by Wagner.
Evidence was given by Ms Zuritta that shortly after Trevilyan had disappeared, Wagner had told her that he had seen Trevilyan at a service station at Prospect. [T4137]
Trevilyan’s hat was found in the ceiling of Bunting’s house.
3.7 COUNT 8 - GAVIN PORTER
Porter was a young man aged about 20 years at the time of his death.
Evidence as to the circumstances of Porter’s death came largely from Vlassakis.
Vlassakis said that he met Porter in 1997 and they lived together at other addresses before moving early in 1998 to 3 Burdekin Avenue, Murray Bridge. Their furniture was placed in the shed at that address, and Vlassakis and Porter slept in the lounge. They were both using drugs heavily.
Vlassakis recalled that not long after they moved into Burdekin Avenue Porter asked Bunting for help in obtaining a pension. He heard Bunting advise Porter that he was to act like a schizophrenic and get the doctors to certify him unfit for work. Vlassakis gave evidence of hearing Bunting make a phone call to Glenside and tell the person at the other end of the call that Porter was “in a hole in the back yard and had lost the plot”.
Vlassakis also said that he saw Bunting sitting at the kitchen table asking Porter personal questions as to his mother, where she was living and other details.
An exercise book was tendered at the trial which was said to contain entries identified as being in the handwriting of Bunting in which various personal details of Porter were written down. There were also signatures purporting to be that of Porter which Vlassakis said were “practice signatures” which he saw Bunting writing out. Expert evidence was given that the signatures were simulations.
The Crown case was that Bunting was taking down these details as part of a plan to murder Porter and access his social security benefits.
The Crown case was that it was no coincidence that within a few weeks of Bunting obtaining the details, Porter was dead.
The evidence as to Bunting copying down the personal details of Porter was the subject of an invitation by the trial judge during the course of his summing up [SU 396] to the jury to consider that evidence in the context of similar documents relating to Suzanne Allen and Gary O’Dwyer.
This was an exception to the overriding direction given by the trial judge to the jury not to make comparisons between the evidence relating to each count.
There was evidence to suggest that it was likely that Porter died between Saturday 4 April 1998 and the following Tuesday, 7 April 1998.
There was evidence that Porter collected some methadone on Saturday 4 April 1998.
On Tuesday 7 April 1998, someone advised Centrelink of a new address for Porter; 13 Ferguson Street, Salisbury North. [SU 392] Porter did not live at that address. They also supplied a postal address, namely a post office box number at Elizabeth, which was a box operated by Wagner.
After Porter’s death, some $11,790 of Centrelink benefits were accessed by Bunting, Vlassakis and Haydon between them.
I have already referred to the occasion when Vlassakis said that he was shown Porter’s body in the shed at Burdekin Avenue. He had seen Porter on the night in question working on Porter’s car in the carport. Vlassakis and his brothers then went to a drive-in for about four hours.
When Vlassakis returned, he found Bunting and Wagner eating a meal in the lounge room. This was not the first occasion on which Wagner had visited Burdekin Avenue.
Bunting then drew Vlassakis aside and took him to the shed where he showed him Porter’s body.
When they returned to the house, Vlassakis was told by Bunting, in the presence of Wagner, to get Porter’s clothes. Various possessions were loaded into Porter’s station wagon.
Amongst the possessions was a bag owned by Porter later found in the ceiling of Bundarra Court.
Vlassakis says that he was told by Bunting to drive Porter’s car to Wagner’s home at Mofflin Road. Vicki Mills was home when they arrived and challenged them with the assertion that it was Gavin Porter’s car, which both Vlassakis and Wagner denied.
Porter’s car was later registered in Mills’ name and Wagner was seen to make use of the vehicle.
Ms Mills gave evidence that when she questioned him further about the fact that she thought the car was Porter’s, Wagner told her that he was buying it from Porter through Bunting.
Porter’s lounge suite ended up with Vlassakis’ mother.
Personal documents connected to Porter were found in the bum bag in the rear of the Ford Marquis at Wagner’s Mofflin Road address.
As for the diversion of Centrelink benefits, Bunting’s handwriting was identified on three applications for a NewStart allowance, [SU 409] as were his fingerprints.
There was evidence that Bunting impersonated Gavin Porter at a meeting with a social worker from Centrelink. [SU 410] The evidence of the social worker, Ms Alvarado, was that a person introduced as Robert Wagner joined the meeting. [T9366]
After Porter’s death, Vlassakis admitted in evidence that he had told various people stories as to what had happened to Porter, such as that Porter had been in a car accident and had gone back to Victoria.
To the wife of a close friend of Porter, Louise Jorquera, Vlassakis said that Porter had gone to his grandmother’s in Melbourne; that he had spoken to Porter that day (a date after June 1998); and that he was okay.
Vlassakis gave other stories to others, including people at the pharmacy which had been used by Porter.

I have already dealt with the movement of barrels, including the barrel containing the body of Porter, to its location in the bank vault.
In the vault, there was a piece of rope found on the counter of the bank from which a DNA sample attributable to Porter was found.
Various theories were put forward by counsel for the accused as to Porter’s death, including the suggestion that he had overdosed with drugs and that he had suicided.
There was methadone in his body when it was recovered.
3.8 COUNT 9 - TROY YOUDE
Troy Youde was the son of Elizabeth Harvey and the half-brother of Vlassakis. He was two or three years older than Vlassakis.
Vlassakis said that Youde had raped him over a period of one or two years, commencing when Vlassakis was aged 12. He told Bunting, who appeared angry.
It was the Crown case that by 1998, which is when Youde was murdered, Bunting had taken Vlassakis, whom he had known since April 1994 when Vlassakis was aged about 14, into his confidence. I have explained how Bunting progressively told Vlassakis of the other murders.
The Crown case was that Bunting was deliberately grooming Vlassakis to participate in further murders.
The killing of Youde was the first murder in which Vlassakis said he was directly involved.
Youde moved into 3 Burdekin Avenue ahead of Vlassakis taking up residence at that address. There is little doubt that Youde was murdered late in August 1998.
Youde kept a medical appointment on 26 August of that year, and he was killed during the week before his birthday, which was 30 August.
Vlassakis gave graphic evidence of the events of the day of his murder.
Vlassakis said that on the day before the murder, his mother and his brothers had gone to Adelaide, where they had spent the night.
Early in the morning, at about 9.00 am or a little later, Vlassakis was asleep on the lounge when he was woken up by Bunting, Wagner and Haydon.
Vlassakis was given a pair of handcuffs and a piece of wood. He was told that they wanted to talk to Youde and “give him a bashing”.
The four of them walked up to the bedroom where Youde was asleep on the floor. The four of them stood around Youde. On a signal from Bunting, they started hitting him.
Youde stood up and backed into a corner. Bunting and Wagner continued hitting him. Bunting and Wagner were each using jack handles from a hydraulic jack.
Bunting told Youde to “get down”. Bunting told Vlassakis to handcuff him.
Vlassakis took out the handcuffs and put one on Youde’s left arm, but at that stage felt that he could not continue. He walked out.
Bunting and Wagner put the handcuffs on as Vlassakis returned to the lounge room.
Vlassakis then walked back towards the bedroom. While in the hallway he saw Bunting and Wagner putting Youde into the bathroom. Vlassakis entered the bathroom. Youde was sitting in the bath. There was blood in his hair and blood across the bottom of the bath tub.
Vlassakis heard Bunting tell Youde “to be quiet, to be good and that he would let him go”.
Bunting punched Youde in the area of his genitals. Wagner was punching him in the chest and the head.
Bunting then told Youde to call him “lord sir”, to call Wagner “god” and to give Haydon a name. Youde called him “chief inspector”. When asked to name Vlassakis, he called him “master”.
There was then further torture. Wagner used a pair of pliers to squeeze Youde’s toenails and toes. When Vlassakis walked out, Bunting brought him back into the bathroom.
A tape recorder was produced and Bunting made Youde repeat various statements, such as that he was going to Perth, words of abuse of his brother Kristoffer, and the like. There were questions about Youde’s PIN number.
Following the episode with the tape recorder, Youde was gagged, and further blows followed. Wagner then tied a rope around Youde’s neck, and with the use of the jack handle started twisting the rope. Vlassakis thought that process was taking too long and grabbed at the jack handle and twisted the rope further until it snapped.
When this happened, Bunting and Wagner were seen to be laughing, whereupon Wagner retied the rope and continued with the process of strangling Youde.
Wagner told Vlassakis to get Youde to apologise to him. Vlassakis kneeled down and told him to apologise.
An important item of evidence follows, important, that is, in the context of Wagner’s complicity in or at least knowledge of the murders which had occurred up to that time.
Vlassakis’ evidence as to this was as follows: [T5201]]
“Q.You told us John Bunting was talking at some stage to Troy Youde, listing off the names of people he murdered, and he asked Robert Wagner and you and Mark Haydon whether any had been left out.
A.If he had forgotten any.
Q.Can you tell us what it was that John Bunting actually said to Troy Youde.
A.Again, I can’t remember word for word, but he was ‘We’ve done this’ - ‘We’ve done this before. There were so many’, and then he had listed names off to Troy. He then turned around to Robert and said has he forgotten any, and to me and Mark.
Q.What names did he list off.
A.Ray Davies, Happy Pants, Gavin Porter, Barry Lane, Michael Gardiner. That was it.
Q.You’ve used their full names. Is that how Mr Bunting used their names.
A.No. It was ‘Michael, Barry, Jimmy, Gavin and Happy Pants’.
Q.When he turned to Robert Wagner, did Robert say anything.
A.He relisted the names.” (emphasis added)
After it appeared that Youde was dead, Bunting asked Vlassakis and Haydon to get some gloves and rubbish bags. They drove to Woolworths at Murray Bridge and bought some large bags and a box of gloves.
When they returned, Youde had been taken out of the bath and was lying on his back. When Bunting said, “We’d better make sure Troy’s dead”, Wagner was said by Vlassakis to have stood on Youde’s chest so as to expel air from Youde’s lungs.
Bunting then used the rubbish bags to envelop the body, fastening them with tape, and the body was carried by all four into the shed.
I have previously explained how a barrel was obtained later, the body placed in it, and that eventually it was taken to the bank vault.
Evidence was given by Vlassakis of a dealing with the body in the bank vault on an occasion when Vlassakis, Bunting and Wagner were in the bank. Bunting opened the door into the vault, and after the locating the barrel with Youde’s body in it, removed the body, and using a knife Bunting started cutting into his legs. Wagner, Vlassakis and Bunting all had gloves on. When Bunting cut off one leg, Wagner cut off or into another leg, and Bunting cut off Youde’s testicles.
After performing other indignities on the body, they returned it to the vault, locked it up and retired to the Freemans, where Vlassakis, Bunting and Wagner had showers.
Mrs Freeman’s evidence was that she recalled such an occasion when the four of them came to her house in a state which she described as “putrid”, and that all of them except Haydon took a shower. [T1776]
When the torso of Youde was examined, after discovery of the barrels in the vault by the police, it was found to have been dismembered. In particular, both legs were severed at the knees and the right foot had been cut off. The pathologist found signs of strangulation by ligature.
Soiled disposable gloves were found in the bank vault and yielded DNA samples consistent with that of Wagner.
Other incriminating items of evidence that had been associated with Youde or with his killing were found in the bank vault. [SU 462 et seq]
The Crown relied on a number of circumstances and events which occurred after the death of Youde by way of circumstantial evidence. They included the creation by Bunting of false stories:
·about Youde damaging Vlassakis’ car;
·that Youde had gone to Aldinga Beach and started working on vineyards there;
·that there had been a “bit of a fight” and that Youde had moved back to Noarlunga;
·that he had moved to Adelaide;
·and other stories.
In the garage at Blackham Crescent, police located a Medicare card and a health card in Youde’s name and other documents personal to him in the ceiling at Bundarra Court. There was various correspondence with Centrelink upon which a fingerprint of Bunting was found.
In a book described as a “Green’s column analysis book”, [SU 478] there were signatures which were said to be attempts to copy Youde’s signature. Vlassakis said that he had seen Bunting practising Youde’s signature.
There is no doubt that various applications were lodged with Centrelink in Youde’s name.
Some $2,950 worth of benefits were drawn after Youde’s death. They were shared between Vlassakis and Bunting.
A micro-cassette was found at Mofflin Road (Wagner’s address) containing a recording of things said by Youde while he was being tortured. A voice identified as that of Bunting was heard in the background.
Some rope was found in the bank with hairs entangled in it, the DNA of which matched that of Youde.
Vlassakis pleaded guilty to Youde’s murder.
3.9 COUNT 10 - FREDERICK BROOKS
Brooks was the son of Jodie Elliott, otherwise known as Gail Sinclair. At the time of his disappearance in September 1998, Brooks was aged 17 years.
Brooks lived with his mother at 4 Blackham Crescent, Smithfield Plains, which was Haydon’s home.
Vlassakis’ evidence was that at some time before the murder of Troy Youde, in 1998, he met Brooks and his mother at 4 Blackham Crescent. Before he met them, Bunting had described Brooks to Vlassakis as “dirty” and that he “was supposed to be touching up little girls”. [T5255] Bunting spoke to Vlassakis in those terms “quite a few times”.
Vlassakis said that later Bunting said that Brooks “needed to go to the clinic”. [T5256] Vlassakis understood that to mean that Brooks should be killed.
In about September 1998, Vlassakis and his family moved from 3 to 23 Burdekin Avenue. A few days after he had moved into number 23, Vlassakis said that he was working on his car in his back yard when Bunting came down and asked if he could give him a hand “with some goodies”. Vlassakis understood that to mean TVs, videos or the like.
When they reached 3 Burdekin Avenue, Bunting told Vlassakis that he had Brooks there.
When Vlassakis entered the house, Wagner was present with Brooks, and the two of them were playing with a pair of handcuffs, putting them on and off Brooks.
After a time Bunting made some sort of signal, and Vlassakis saw Wagner grab Brooks from behind and started to choke him.
Bunting yelled out to let him go, “You’re going to kill him. Let him get some air”.
Vlassakis started to walk away when he saw Bunting and Wagner pulling and pushing Brooks into the bathroom. Brooks was told to sit in the bath. The handcuffs were on. Brooks T-shirt was taken off, his jeans were removed, and Bunting and Wagner began punching him in his testicles.
The machine known as the Variac was produced. This enabled the operator to apply to the victim through leads onto the victim’s body, electric current at voltages which could be increased by the operator. When Brooks was asked about the “little girl” and denied touching her, the Variac was attached to Brooks’ genitals and turned on.
Other tortures were applied, including the application by Wagner of lighted cigarette butts into Brooks’ nose and ears. Wagner then started to apply a cigarette lighter to Brooks’ forehead and other parts of his body.
At this stage, the tape recorder was produced and Bunting forced Brooks to repeat phrases. They were phrases couched in terms appropriate to be transcribed onto a telephone answering machine, and included abuse of his mother. Other personal details were extracted, such as PIN numbers, his bank accounts and other questions.
At one stage, Vlassakis joined in the abuse, and struck Brooks about the body.
At another stage, a lighted sparkler was inserted into Brooks’ penis.
Vlassakis said that Bunting and Wagner also filled syringes with water and injected them into Brooks’ testicles.
Vlassakis’ evidence [T5273] was that he could not remember how it was that Brooks was eventually killed, but his evidence was that the body was wrapped in plastic and put in the boot of a Torana car.
While the torture was being carried out, Vlassakis said that Bunting asked him to play a CD on a stereo, the CD being of an album called Throwing Copper. Vlassakis said that the lyrics played included words such as “we will not be bashed, raped or scarred”. Vlassakis’ evidence was that Bunting had a predilection to play the track containing lyrics in that vein at more than one of the murders. He said that it had been used during the killing of Troy Youde.
Vlassakis said that Brooks was forced to call Wagner “god” and Bunting “master”. After Brooks was murdered, [T5282] Bunting described him as a “good one”, as he did not scream, and “he took the pain”.
Over the next day or so, Vlassakis saw Bunting and Haydon putting the Torana onto the car trailer. [T5282] Later, [T5284] Vlassakis saw the car into which Brooks’ body had been put in Mark Haydon’s shed. Bunting and Haydon were present.
When Vlassakis asked about a strong smell in the shed, Bunting said that Brooks body was in the cellar.
Later, [T5286] Bunting said that they had put Brooks into a barrel.
At the trial, a tape containing what was said to be the voice of Brooks recorded while he was being tortured was played, and another voice, said to be that of Wagner, was also on the tape.
Vlassakis gave evidence of how the tape taken during the course of the torture was used to transfer messages onto Brooks’ telephone message bank.
Evidence was given as to the location of various items of property which had been owned by Brooks.
What was described as a “triple M” bag, sneakers and clothing were found in the bank. His mobile telephone was found in the ceiling at Bundarra Court (Bunting’s house).
Brooks’ wallet was found in a bum bag in the Ford Marquis at Mofflin Road. Documents relating to Brooks and Centrelink were found in the Ford station wagon at Mofflin Road.
Other documents to do with Centrelink benefits were found in the shed at Blackham Crescent and in Haydon’s station wagon.
Documents in Haydon’s station wagon were of a kind which, on the Crown case, would enable an impersonation of Brooks to be made. The documents were a significant item of evidence: it was Haydon who derived from Centrelink, after the death of Brooks, benefits totalling $5,380.
Correspondence addressed to Brooks at 36 Mofflin Road (Wagner’s address) and PO Box 182 Elizabeth (Wagner’s post office box) ended up in Haydon’s station wagon.
Evidence from Brooks’ mother, Jodie Elliott, was to the effect that after Brooks’ disappearance, Bunting told he that her had seen her son at the petrol station.
Vlassakis’ evidence was that he was asked by Bunting to impersonate Brooks at a Centrelink office in order to facilitate the ongoing payment of benefits.
The evidence was that Vlassakis, accompanied Bunting, who gave another name, Gavin Allen, impersonated Brooks on an occasion at the attendance at a doctor’s surgery. The doctor gave a medical certificate after saying that it appeared that “Brooks” was suffering from paranoia.
A psychiatrist gave evidence of other subterfuges which were carried out in order to secure ongoing payment of the Centrelink benefits.
Both Vlassakis and Wagner pleaded guilty to Brooks’ murder.
3.10 COUNT 11 - GARY O’DWYER
Vlassakis’ evidence was that he met Gary O’Dwyer when Vlassakis was living at 3 Burdekin Avenue. O’Dwyer lived nearby. Vlassakis occasionally spoke to O’Dwyer over the fence, or when he saw him in the street. This was in about October 1998. [T5393] O’Dwyer was 29 when he met his death.
When he was about 21, he had been seriously injured and was left with a permanent leg disability [T7666]. He was mentally impaired. He recovered damages which were managed by Public Trustee. He was unemployed and spent much time walking around the streets near Vlassakis’ home.
There were occasions when he was seen walking around while Vlassakis was in the company of Bunting. According to Vlassakis, Bunting made derogatory comments, such as “Look at that fag. He looks so much like Troy [Youde] ... He’s a ‘dirty’ ... He needs to go to the clinic”. [T5394]
At some stage Bunting asked Vlassakis to obtain some personal details about O’Dwyer, such as whether he was on a pension.
Vlassakis complied. His evidence was that he reported back to Bunting that O’Dwyer “... was on a pension, that he was adopted, that he lived alone ... he had a court case and he was due to go to court”. [T5397]
A little later, on the occasion of a chance meeting with Vlassakis in the street, while Bunting and Wagner were in Bunting’s car, Bunting said something to the effect that “he wanted to play”, and asked Vlassakis what “the chances were of getting Gary O’Dwyer”. Bunting suggested that Vlassakis go and see O’Dwyer and ask whether Bunting and Wagner could come over and have a drink with him.
When Vlassakis spoke to O’Dwyer, he agreed.
Vlassakis brought Bunting and Wagner to the house. O’Dwyer was plied with alcohol, and without warning, according to Vlassakis, Wagner grabbed O’Dwyer from behind and his hands were handcuffed behind his back. He was taken into the kitchen, and according to Vlassakis, he was tortured and abused.
I do not go into particular detail as to the circumstances of the torture, except that it exhibited features which by then were becoming familiar to Vlassakis:
·Bunting asked O’Dwyer to call him “lord sir” and to call Wagner “god”.
·Vlassakis was sent out of the house to bring in the Variac machine and a bag containing pens, tape, lighters and some sparklers from Bunting’s car.
·O’Dwyer was subjected to the Variac.
·Personal details were extracted, and when he said that he had a bank book, this was taken. Bunting wrote down in a book personal details relating to O’Dwyer.
On this occasion, Vlassakis did not stay to the end; he left while the other two were still abusing O’Dwyer.
Although Vlassakis did not give evidence that he was present when a recording of O’Dwyer’s voice was made, such a recording was later located by Vicki Mills, Wagner’s de facto partner, at the Mofflin Road address where she lived with Wagner, sometime after his arrest in October 2002.
The voice of O’Dwyer on the cassette was identified by O’Dwyer’s foster mother, and another voice was identified as that of Wagner. Wagner was saying words such as “he’s trying to be good”.
Vlassakis’ evidence was that he next saw Bunting on the morning following the torture of O’Dwyer. He says that he was present when Bunting had a discussion with Vlassakis’ mother, Elizabeth Harvey, when the three of them were together at Harvey’s house that morning. Vlassakis’ evidence as to this was: [T5451]
“I was just having a general conversation with my mum and John Bunting had arrived and said to mum that he - that Gary O’Dwyer had a fight with some Aboriginals, he got beaten up pretty badly, he’s gone on the run and he had sold, or asked John if he wanted to buy his furniture and John said ‘Yes, a couple of hundred dollars’ and then John said he was given the key by Gary O’Dwyer and told to clean up - like, if he’d clean the house up, and hand the key back to the Housing Trust. ‘You can have everything in it and what you don’t want, just throw it away’. It was something along those lines, something like that.”
Vlassakis says that Bunting asked Harvey if she wanted a fridge and a new bed.
In fact, she received a bed, a fridge and some other items of furniture which had belonged to O’Dwyer.
Subsequently, when Bunting was alone with Vlassakis on the same morning, Vlassakis said that Bunting told him that “Gary O’Dwyer was made good”. He asked Vlassakis if he could give him a hand later.
After dark that day, Bunting took Vlassakis to O’Dwyer’s house. Bunting was driving the Ford Marquis, towing a trailer. They emptied the house of furniture and clothing.

Vlassakis was on the methadone program during the period over which he gave evidence at the trial. He had started the program in 2001. He was taking a daily dose of methadone.
The Crown called two expert witnesses to assist the jury in their understanding of the effects of the drug.
One of the witnesses was Christopher Holmwood, the clinical director of the South Australian Prison Health Service. The effect of his evidence was that the dosage which Vlassakis was taking was within the average level of dosage for prisoners. His evidence [T9052] was that people on normal doses of methadone can “go about their business quite normally” and “function perfectly normally”. He said that the fact that they are on methadone would be “unknown to people around them”.
Apparently, at times, Vlassakis closed his eyes while giving evidence. When asked about it by the trial judge, he said that to do so helped him to concentrate.
He also said that he was having problems sleeping properly, and this made him tired. He complained about the intensity of the light in the court room, which, I must say, from my own observations in the trial court room, is very bright indeed. That he came into the court room from his incarceration in gaol or holding cells would no doubt accentuate the problem for him.
Both the jury and the trial judge had the benefit of observations of Vlassakis over very many days of examination and cross-examination.
At one stage during the course of Vlassakis’ examination, in the absence of the jury and Mr Vlassakis, the trial judge said: [T5328]
“Mr Vlassakis has been giving evidence for many hours. There have been times where he has requested a break because he is suffering from a headache, and there were times at which he has become distressed. Throughout his evidence, he has spoken in clear speech and given immediate and appropriate responses. As I indicated previously, there have been occasions when he has closed his eyes, and, at times, when there have been lengthy breaks between questions, or, more correctly, lengthy pauses between questions, Mr Vlassakis has sat with what might be described as a somewhat vacant look, and there have been a few occasions when he has blinked slowly. However, it is my very clear impression that Mr Vlassakis has understood the questions that have been asked of him and has responded in an appropriate manner on every occasion.”
At the end of the day, the question of the evaluation of the evidence of Vlassakis was clearly a matter for the jury.
They were assisted by lengthy directions given by the trial judge [SU 57-75] which included an accomplice warning, a clear warning for the jury to take account of the fact that Vlassakis was “not a person of integrity or good character; quite the opposite” [T58], the fact that he had his own personal interests to serve in giving evidence implicating the other accused, as well as a lengthy direction on the effect of drugs, including the effect of drugs on his memory.
He also dealt at length with inconsistencies in his evidence [T70] and gave a warning to take care in acting upon his evidence, particularly where it was uncorroborated. The trial judge also made observations to the jury as to the dynamics of Vlassakis’ relationship with Bunting [SU 92].
As for the questioning of witnesses by the trial judge, while it is true that quite a number of questions were put to the witnesses from time to time by the trial judge, I am unable to accept that it is arguable that his interventions were excessive.
In his report to the Registrar dated 31 October 2003 concerning Bunting’s appeal, the trial judge said:
“… on occasions I questioned a number of witnesses, including Mr Vlassakis, when I considered it was necessary to ensure that the jury was receiving the benefit of all relevant evidence that the witness could give. I was not concerned with whether the evidence supported the Crown or an accused or whether it enhanced or damages the credibility of a witness. I do not agree that the interventions were inappropriate or that they operated unfairly against either accused.
Throughout the trial I maintained a consistent manner towards witnesses when talking to or questioning the witnesses. I do not agree that my conduct towards or manner of questioning Mr Vlassakis could have been perceived by the jury as implying that I was sympathetic towards him or that I accepted his evidence.”
The complaints made with respect to the handling by the trial judge of the receipt of evidence from Vlassakis, including his directions to the jury with respect to Vlassakis, are not reasonably arguable.
4.13 UNSAFE AND UNSATISFACTORY
Wagner - ground 11 (count 3, Davies); ground 22 (count 5, Gardiner); ground 36 (count 7, Trevilyan); ground 42 (count 8, Porter); ground 73 (count 12, Haydon)
Bunting - ground 7 (count 7, Trevilyan)
In each of the grounds advanced by him, Wagner alleges that the particular verdict was unsafe and unsatisfactory by reason of the fact that the “circumstantial evidence was insufficient to lead to a conclusion of guilt beyond reasonable doubt”, and further particularises the complaint by reference to the matters raised in various other grounds of appeal.
Bunting attacks the verdict on one count only, count 7 (Trevilyan) on the basis that it is unsafe and unsatisfactory.
His proposed ground is as follows”
“GROUND 7
VERDICT on Count 7, unsafe, unreasonable and unsupported by the evidence. The evidence was deficient in several respects:
(1)The evidence of Vlassakis concerning admissions by the applicant was uncorroborated.
(2)The Trial Judge erred, when cautioning the jury about statements made by Trevilyan by failing to instruct them that if it was reasonably possible that Trevilyan was present at the killing of Lane, then he could have been an accomplice. In the event that Trevilyan may have been an accomplice, his alleged statements to Penner warranted an accomplice warning. No such warning was given.
(3)The Trial Judge erred in admitting into evidence statements by Trevilyan (deceased) to Penner and compounded the error in the confusing directions to the jury.
(4)The Trial Judge erred in failing to adequately emphasise in his summing up to the jury how the evidence of Ross James was entirely consistent with Trevilyan dying from suicide.
(5)The Trial Judge erred in permitting joinder of this count together with other counts where the evidence was disproportionately strong and gave rise to the possibility that the jury reached its verdict on this count through an impermissible chain of reasoning.”
On the hearing of an appeal as opposed to an application for leave to appeal, it is incumbent upon the appeal court to make an independent examination of the evidence in order to determine whether it was open for a properly directed jury, on the evidence, to be satisfied of guilt beyond reasonable doubt: see M v R.[17]
[17] (1994) 181 CLR 487 at 493-494. See also Jones v R (1997) 191 CLR 439.
As this is an application for leave to appeal, it is necessary for me to determine whether any of the proposed grounds are reasonably arguable.
In the case of ground 7 raised by Bunting, he refers to several discrete alleged deficiencies in the evidence.
Insofar as Bunting complains that the evidence of Vlassakis concerning Bunting’s alleged admissions was uncorroborated, it must be pointed out that Vlassakis’ evidence, insofar as it went into details which Vlassakis said had been provided to him by Bunting, was consistent with the crime scene. The actual location of the crime scene was correctly indicated to the police by Vlassakis. Clearly, Vlassakis could not have known where the tree was from which Trevilyan was found hanging, unless he had been told by Bunting.
The reference in subparagraph (2) of this proposed ground belies a misunderstanding as to the circumstances in which an accomplice warning is required.
The statements by Trevilyan to Penner, evidence of which was admitted by the trial judge, was properly admissible. It was not hearsay, for the reasons given by the trial judge in his ruling on this issue, published after the completion of the trial: viz R v Bunting and Wagner (No 8).[18]
[18] [2003] SASC 256.
Insofar as Bunting claims a failure by the trial judge “to adequately emphasise in his summing up” the evidence of the pathologist, Dr Ross James, to the effect that the likely circumstances of Trevilyan’s death were consistent with suicide, I am unable to accept that there is any arguable deficiency in that respect.
As I have indicated earlier, the Crown case was that Trevilyan’s death was a simulated suicide, so that Dr James’ evidence in that respect ceases to be exculpatory.
I have dealt elsewhere with the question of the joinder of count 7.
Turning to the grounds under this heading raised by Wagner, I have already given a summary of the evidence as to each count. Far from being weak, as Mr Cuthbertson suggested, in my view, the evidence on each count, to the extent that it implicated Wagner, was strong.
In my view, these grounds are not reasonably arguable.
4.14 OTHER COMPLAINTS MADE BY BUNTING
In the draft grounds of appeal, in the consolidated grounds, in his oral address, and in the letter received from him after the completion of the addresses, Bunting raised a number of other issues, some of which were strictly not matters which could properly be addressed as a ground of appeal.
Given the fact that he is unrepresented, I have done my best to identify the points made by him. Beyond those which I have already specifically dealt with, the following points are worthy of comment, albeit briefly.
·Summing Up
Bunting complains that the summing up was unfairly weighted in favour of the prosecution.
The summing up was lengthy, as I have observed earlier. It occupies some 721 pages of transcript.
In the summing up the trial judge dealt in detail with the circumstances surrounding each of the alleged murders and made a painstaking analysis of the important items of evidence.
Allowance must be made for the fact that the Crown case on all counts was strong, and the defence case weak.
The remarks of King CJ in R v O’Neill[19] are apposite:
“finally it was contended that the learned trial judge’s summing up to the jury was unbalanced and unduly unfavourable to the appellant such as to deprive the appellant of a fair trial. … I think that the general effect of the summing up was distinctly adverse to the appellant. But the defence was fairly put to the jury. … A summing up is not unfair because it accurately reflects the strength of the case for the prosecution on the one hand and the weakness of the case for the defence on the other. The case for the prosecution was very strong and the only answer was a very belated story which was in flat contradiction of the Crown case and the weakness of the defence case emerged from a perusal of the summing up.”
·Clinton Trezise
[19] (1987) 48 SASR 51 at 62.
Bunting raises a number of grounds with respect to the soundness of his conviction for the murder of Trezise.
They relate in the main to what he suggests to be the insubstantial nature of the Crown case implicating him in Trezise’s murder; the unreliability of the evidence of Veronika Tripp; and what Bunting suggests was the incorrect ruling by the trial judge on the admissibility of Barry Lane’s conversations with Veronika Tripp.
I have already sketched the immediate circumstances of the death of Trezise and the finding of his skeleton. The pathological evidence was that the cause of death was more than likely traumatic brain damage as a result of multiple blows to the left side of the back of the skull. [T1004]
There was no doubt on the evidence that Bunting knew of Clinton Trezise. There was evidence of admissions by him that he had murdered Trezise, being admissions made to both Veronika Tripp and James Vlassakis.
I have already referred to the fact that when Bunting is alleged to have spoken to Vlassakis about the matter, he was referring to a segment on Australia’s Most Wanted television program which related to the finding of the body at Lower Light which was subsequently identified as Clinton Trezise.
Viewed in context, statements by Bunting to Vlassakis admitting to the murder of “Happy Pants” were statements which it was open to the jury to attribute to the murder of Trezise.
Extended warnings were given by the trial judge to the jury as to the caution which they should exercise before accepting the evidence of either Tripp or Vlassakis. Whether or not their evidence in the relevant respects was to be accepted, was entirely a matter for the jury.
There was no application to exclude Tripp’s evidence. Indeed, it is difficult to see that there was any basis upon which any such application could successfully have been made.
Insofar as Bunting complains of the admissibility of the statements by Barry Lane and Veronika Tripp, these were statements to the effect that Barry Lane had assisted Bunting in disposing of Trezise’s body. [Tripp T4313] Evidence was also admitted as to statements to the same effect by Barry Lane to three other witnesses: Sylvia Lane, Krystal Spencely-Smith, and Mark Townsend.
Evidence of these conversations was not admitted in order to prove the implication of Bunting in Lane’s murder. The trial judge clearly directed the jury accordingly.
The evidence was admitted in order to establish knowledge on the part of Barry Lane of the murder of Trezise, which in turn provided a motive, or went towards the establishment of a motive, for the killing of Lane himself.
·Listening Device Recordings
Bunting complains that the trial judge erred in admitting into evidence recordings obtained by use of a listening device installed in the premises at 4 Blackham Crescent.
The admissibility of the conversations which were recorded by use of the listening device was the subject of a voir dire hearing conducted before the commencement of the trial.
The trial judge heard evidence and was given detailed submissions by counsel. He ruled the evidence admissible, and gave written reasons for that conclusion after the completion of the trial.[20]
[20] R v Bunting and Wagner (No 4), judgment No [2003] SASC 252, 29 October 2003.
The argument against admissibility focused on the validity of the issue of the warrants, at least to the extent that it authorised others, apart from the applicant for the warrant, to enter the premises to install the device.
In his written reasons, the trial judge deals comprehensively with the evidence as to the issue and use of the device, and as to the legal arguments which were advanced.
He held that if contrary to the conclusions which he reached the warrants were invalid, he would have exercised his discretion to admit the evidence.
In his letter written after the completion of the arguments on the hearing of the application for leave to appeal, Bunting complains of delay in the receipt by him or his advisers of the material relating to the listening device evidence.
I am not in a position to assess whether there was any undue delay in the supply of this material. However, it is clear that the material was received and made the subject of extended argument on the voir dire by Bunting’s counsel. In those circumstances, the question of the timing of its release to Bunting or his advisers is now irrelevant.
No ground has been identified which raises an arguable case against the validity of the conclusions reached by the trial judge on this issue.
·Anti-paedophile Evidence
In various ways, Bunting complains that the trial judge erred in admitting a substantial volume of evidence from a number of witnesses as to the evident hatred by Bunting of paedophiles and homosexuals. Much of the evidence included statements by Bunting as to how such people should be dealt with.
It must be accepted that this evidence was prejudicial. But it was not prejudicial in the sense that it was evidence adverse to the accused on a topic remote from proof of guilt.
The motive which this evidence went to prove was relevant to the murders of Trezise, Davies, Gardiner, Lane, Youde, Brooks, O’Dwyer and Johnson. The nature and frequency of the conversations and the extent of the documents generated by Bunting on this topic over an extended period of time was capable of being accepted by the jury as proof of a hatred of and obsession against paedophiles and homosexuals which, if attributable to Bunting, went a long way to explaining the bizarre and depraved manner in which the victims met their deaths.
·Post-mortem Photographs
Bunting complains that the trial judge erred in admitting into evidence photographs of the post-mortem examinations of the deceased. He contended that it gave rise to unnecessary prejudice and that it would have been better for diagrams and sketches to have been used.
Ms Abraham QC submitted that only a very limited selection of post-mortem photographs were shown to the jury. She contended that those which were selected and shown to the jury were put forward in order to demonstrate particular features of the bodies that were probative of the Crown case.
The question whether the trial judge should have exercised his discretion to exclude the photographs was fully argued before him before he delivered rulings in favour of their admission.
The photographs were not used exclusively. In some instances, charts were used to describe some of the injuries inflicted upon victims.
At the time the photographs were tendered, the trial judge had this to say to the jury: [T893-894]
“Ladies and gentlemen, as you’ve heard, a number of photographs were taken. The photographs that you are about to see are not all the photographs that have been taken. I’ve restricted the number of photographs, because it is unnecessary for you, in my view, to see any more.
Obviously, they are unpleasant. They are, some of them, far more unpleasant than the video you have already seen.
As I said to you at the beginning of the trial, if you have a reaction to them, that is quite natural. Don’t worry about it. It is a natural reaction. What you need to do is recognise it for that and then put it aside and approach the evidence in a very clinical fashion.
I’ll have the photographs go out with you now in the morning break. It will give you an opportunity to look at them at your own leisure.
Please bear in mind, at the moment, you have not heard any evidence about the photographs. You will hear evidence in due course as to what these photographs depict. Some of them are obvious.
Photographs that Dr Gilbert will give evidence about concern Youde, Elizabeth Haydon and David Johnson. Some of the photographs depict the bodies and tape around the head, gag in the mouth and so on.
The only thing I can suggest to you, in terms of getting used to it, if you’ve not previously seen photographs of this type, is to, as I said previously, flick through them, look at them briefly. If you find them difficult to look at, pass over them, and you will be able to come back to them.
You’ll find, I think, if they are causing you any difficulty, that, over a period of time of looking at them briefly and looking at them again, you’ll get used to them. They are never pleasant, but you get used to dealing with them and to look at them in a very clinical manner and to use them in the proper way; that is, as aids to you to understand the state of the bodies at the time that they were removed from the barrels.” (emphasis added)
With or without photographs, the presentation of the Crown case in this trial involved at times descriptions of gruesome and inhumane torture and mutilation of bodies. Against that background, it is doubtful whether the tender of the photographs could be said to have added a prejudicial layer to the evidence.
This was a case which was likely to shock the sensibilities of the jury, however it was presented.
There is nothing in this proposed ground.
·Bunting complains at what he suggests was the unduly favourable way in which Vlassakis was treated as a protected witness

At one stage, according to Bunting, Vlassakis was held in a wing of the women’s prison at Port Augusta.
At the time he was giving evidence he was kept at the City Watch House.
The manner in which Vlassakis was housed was entirely a matter for the prison authorities. Any suggestion of preferred or unduly favourable treatment of him in that respect cannot impact upon the veracity or reliability of his evidence at the trial or the jury’s assessment of it.
5. A QUESTION OF LAW ALONE
Mr Cuthbertson argued that many of the grounds which Wagner seeks to raise involve questions of law alone, within the meaning of s 352(1)(a)(i) of the CLCA, as to which there is an appeal as of right and no question of leave arises.
On the other hand, Ms Abraham QC contended that with respect to both Wagner and Bunting, all of the proposed grounds of appeal were grounds either of fact or grounds involving a mixed question of fact and law, and accordingly leave was required.
Leave was opposed on all grounds.
The distinction between questions of fact and law has given rise to a considerable body of case law. See, for example, the observations of Windeyer J in Da Costa v The Queen:[21]
“The distinction between questions of fact and questions of law, like the different but in some way similar distinction between mistakes of fact and mistakes of law, has been productive of a multitude of cases and of numerous judicial statements which, especially in the field of taxation, are not all easily reconciled. … It is now commonly said that the distinction between matters of fact and of law depends upon, is influenced by, and differs with the circumstances in which the question arises. When the distinction determines whether or not in a particular case an appeal lies, there is room for questioning whether it has in philosophy or logic an essential and abstract and universal character.”
[21] (1968) 118 CLR 186 at 194.
Here, of course, the relevant expression may be somewhat more confining, in the sense that a question of law alone, would seem to be of more narrow ambit than a question of law simpliciter.
Whether or not an appeal raised a question of law alone, was considered by the High Court in Williams v The Queen.[22]
[22] (1986) 161 CLR 278.
One of the questions in that case was whether or not a trial judge had wrongly rejected evidence, in the exercise of his discretion. Under the relevant section of the Criminal Code of Tasmania, the Attorney-General could appeal against a conviction only “on a question of law alone”.
In the course of his judgment, Gibbs CJ observed:[23]
“… ultimately the question was whether the confessions were rightly rejected, and that depended on the making of a discretionary judgment which depended in part on the facts of the case. In Reg v Jenkins,[24] Crisp J correctly pointed out that a ‘question of law alone’ does not include a question of mixed fact and law and went on to say that ‘there would seem to be great difficulties in the way of entertaining an appeal by the Crown against the exercise of a judicial discretion where the question involved is not so much the existence of a discretion but the question of its exercise in relation to the facts of a particular case’. …Neasey J put it in the present case, there is ‘a question of law alone’ if the question of law can be stated and considered separately from the facts with which it may be connected in a given case.”
[23] Ibid 287.
[24] [1970] Tas SR 13 at 15.
Mason and Brennan JJ agreed:[25]
“The manner in which a discretion is exercised depends upon the judge’s appreciation of all the facts of the case, so that an error of law which leads to the judge wrongly to hold that he has a discretion is not the only factor which contributes to his decision to reject the evidence …”
[25] Ibid 302.
In their joint judgment, Wilson and Dawson JJ agreed with the judgment of Gibbs CJ on the point.[26]
[26] Ibid 314.
Having regard to the approach identified in those passages in determining whether or not any of the proposed grounds of appeal raised questions of law alone, I have considered whether each particular ground raises a question of law which may properly be considered separately from the facts giving rise to the point.
An example of a point of law alone may be where the point is one purely of statutory construction, capable of being addressed in a manner disengaged from any consideration of the facts.
Mr Cuthbertson tabulated 23 grounds which he said were questions of law. I assume by this he meant that the ground raised a question of law alone.
I have carefully considered his arguments in that respect, but I am not persuaded by them.
It would be tedious and unnecessary, particularly on an application for leave, to set out each of the grounds to which he draws attention in this respect. It will be sufficient if I give some examples.
Ground 1-The trial miscarried in that counts 1, 2, 3, 4 and 7 were not properly joined pursuant to s 278 of the Criminal Law Consolidation Act
Mr Cuthbertson contended that this ground raised a question of law alone “as it does not require any assessment of the facts but merely a question of whether the facts as advanced by the Crown case may correctly be categorised as forming part of a series of offences of the same or similar character”.
I do not agree.
In order properly to address that ground, it is necessary for the court to address the question whether the trial judge correctly evaluated the evidence to be led, against the statutory touchstone. It was not a question which could properly be addressed in a manner disengaged from a consideration of the evidence.
The content of the trial judge’s reasons for ruling on the question of joinder support the view which I have expressed.
In the reasons, the trial judge sets out an extended summary of the facts surrounding each of the deaths. He quotes the passage which I have referred to above, from the judgment of King CJ in R v Garrett (supra), where the Chief Justice emphasises that the relevant similarity may arise not only from the legal element of the offences, but also from “the facts which constitute them and the circumstances in which and the relationships out of which they arise”.
When ruling on the question of joinder, the trial judge was clearly exercising a discretion based upon the application of legal principles to his assessment of the facts. This clearly involved a mixed question of fact and law.
Ground 5-The trial judge erred in his directions to the jury as to underlying unity with respect to count 12 (Haydon)
This did not involve a question of law alone, as the question whether there was such an underlying unity, and whether or not the direction gave proper guidance to the jury on that issue, is a typical mixed question of law and fact.
Ground 48-The trial judge erred in not giving an appropriate direction on lies as evidence of consciousness of guilt in relation to the alleged story by Wagner about purchasing the car of Porter through Bunting
Again, this is a typical question of mixed law and fact. The question whether or not a lies direction should be given depends in part upon an evaluation of the nature and significance of the evidence said to amount to a lie in the context of the evidence as a whole.
Ground 51-The trial judge erred in permitting the jury to use a comparison of the contents of the tape recording of Youde with the recordings of Brooks, O’Dwyer and Johnson as evidence of the appellant’s involvement in the Youde murder.
Mr Cuthbertson argued as to this ground that it “… is at least in part, [a question of law] insofar as it complains of the direction that the evidence could be used at all it is a question of law”.
Again, in my view, this raises either a pure question of fact or, at best, from the appellant’s point of view, a mixed question of law and fact.
It involved consideration of one item of evidence against another in determining whether or not the two items of evidence identified a similar modus operandi which in turn might help to identify those involved in the incident.
Other examples could be given.
In my view, all of the proposed grounds raise questions of fact or mixed questions of fact and law.
6. CONCLUSION
In considering the applications, I have been acutely aware of the difference in the role between that of a single judge considering an application for leave to appeal and that of a court hearing a substantive appeal.[27] Once it is accepted that the grounds do not identify a question or questions of law alone, my role is simply to determine whether or not any of the grounds are reasonably arguable.
[27] Blick (1999) 108 A Crim R 525 per Callaway JA at 530.
In my view, none of the grounds put forward by either of the applicants satisfies that test.
In the course of determining the applications, it has been necessary for me to read the whole of the summing up, all of the published rulings of the trial judge and substantial passages of transcript.
I am left with the clear impression that both applicants were accorded a fair trial according to law.
I can identify no reason to suppose that the convictions of either applicant were recorded in circumstances giving rise to an appealable risk of a miscarriage of justice.
The applicants were represented by competent counsel at the trial, and hardly any of the matters now sought to be agitated were the subject of any objection, complaint or criticism by defence counsel.
Given the complexities associated with such a lengthy trial, so many counts and so many witnesses, it is easy to advance criticisms in an abstract fashion, divorced from the practical realities of the trial and without a full appreciation of the evidentiary context.
The applications for leave to appeal are dismissed.

Comments	Friend of Barry Lane and Wagner, and known to Bunting	Lived in caravan at home of Suzanne Allen. Said to have interfered with grandchildren.	Hung jury.
Voice recording
Property taken	Caravan taken by Bunting and Wagner, sold by Bunting. Personal items.	Car (given to Elizabeth Harvey). Furniture (sold by Wagner and Bunting). Personal items.
Social security claimed	$33,500 (Bunting)	$23,000 (Bunting, Jodie Elliott)
Found	16/8/94 Shallow grave Lower Light	26/5/99 Waterloo Corner Road	23/5/99 Waterloo Corner Road
Last seen alive	Aug 1992	Late 1995	Nov 1996
Alleged offence dates	9/7/92 - 31/8/92	25/12/95 - 21/1/96	20/11/96 - 10/12/96
Accused Plea or verdict	BUN G	WAG NG by direction	BUN G WAG G	BUN Not WAG Agreed
Deceased	Clinton TREZISE	é Assisting	Ray DAVIES	Suzanne ALLEN
Count	1	2	3	4

Comments	Homosexual	Said to be a paedophile. Abused Wagner.	Young man who had lived with Lane.	Friend of Vlassakis. Into drugs.
Voice recording	Yes (Inferentially)	Yes (Inferentially)
Property taken	Wallet (cards in Marquis and notebook with Bunting). House ransacked. Other property not traced.	Car and personal papers to Bunting. Keycard and other personal items to Wagner.	No - except for hat in Bunting’s ceiling.	Lounge suite (Bunting). Car (Wagner). Personal items - Bunting and in the Marquis. Wagner had post-death generated papers.
Social security claimed	No, but reported missing	$15,400 (Wagner)	$11,790 (Bunting, Vlassakis and Haydon
Found	20/5/99 Barrel / bank	20/5/99 Barrel / bank	5/11/97 Tree / Kersbrook	20/5/99 Barrel / bank
Last seen alive	Sept 1997	Oct 1997	4 Nov 1977	April 1998
Alleged offence dates	31/8/97 - 17/9/97	15/10/97 - 15/11/97	3/11/97 - 6/11/97	3/4/98 - 8/4/98
Accused Plea or verdict	BUN G WAG G	BUN G WAG P/G	BUN G WAG G	BUN G WAG G
Deceased	Michael GARDINER	Barry LANE	Thomas TREVILYAN	Gavin PORTER
Count	5	6	7	8

Comments	Son of Elizabeth Harvey. Stepbrother of Vlassakis. Said to have sexually assaulted Vlassakis.	17 year old son of Jodie Elliott (who had relationship with Bunting).	Intellectually disabled. Lived near Bunting at Murray Bridge.	Wife of Mark Haydon. Sister of Jodie Elliott.	Said to have dated 13 year old girl.
Voice recording	Yes	Yes (includes Wagner)	Yes (includes Wagner)	Yes	Yes
Property taken	Documents with Bunting, Haydon and in bank vault.	Documents with Bunting. Backpack in bank. Wagner had post-death generated papers.	TV to Wagner, lounge suite to Haydon, bed, chest of drawers, fridge and Keycard to Bunting	Keycard at Wagner’s house .	Car to Bunting then Jodie Elliott then Haydon. Keycard to Bunting. Car radio, TV, stereo, CDs and magazines to Wagner
Social security claimed	$2,950 (Initially Vlassakis, then Bunting	$5,380 (Haydon)	$4,790 (Bunting)	No, but reported missing	$390 by Vlassakis, and arrested soon after.
Found	20/5/99 Barrel / bank	20/5/99 Barrel / bank	20/5/99 Barrel / bank	20/5/99 Barrel / bank	20/5/99 Barrel / bank
Last seen alive	Aug 1998	17 Sept 1998	28 Oct 1988	20-22 Nov 1998	? 9 May 1999
Alleged offence dates	25/8/98 - 8/9/98	16/9/98 - 19/9/98	27/10/98 - 14/11/98	20/11/98 - 26/11/98	9/5/99
Accused Plea or verdict	BUN G WAG G VL P/G	BUN G WAG G VL P/G	BUN G WAG G VL P/G	BUN G WAG G	BUN G WAG P/G VL P/G
Deceased	Troy YOUDE	Frederick BROOKS	Gary O’DWYER	Elizabeth HAYDON	David JOHNSON
Count	9	10	11	12	13