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…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read R v Bunting and Wagner and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] SASC 235
Decision Date: 11 August 2004

CaseChat Overview and Summary

The applicants, Bunting and Wagner, sought leave to appeal against their convictions on multiple counts of murder. The Supreme Court of South Australia was tasked with determining whether any of the proposed grounds for appeal were reasonably arguable. The applicants contended that there were errors in the trial process that warranted a new trial or appeal. These included alleged errors in the admission and exclusion of evidence, issues with the jury's instructions, and claims of inadequate legal representation. The court was required to assess these claims to determine if they presented a viable basis for appeal.

The court meticulously reviewed the evidence and arguments presented, focusing on whether the proposed grounds of appeal were arguable in law or fact. The applicants needed to demonstrate that the alleged errors were significant enough to potentially lead to a miscarriage of justice. The court found that none of the grounds put forward by the applicants were sufficiently compelling to warrant an appeal. The judges highlighted that the trial had been conducted fairly, with both applicants receiving competent legal representation. Furthermore, the extensive trial transcripts and rulings did not reveal any procedural errors that could have materially affected the outcome of the trial.

In conclusion, the court dismissed the applications for leave to appeal. The judges determined that the proposed grounds did not identify any questions of law alone and were not reasonably arguable. The court expressed confidence in the fairness of the trial and the integrity of the convictions. The applicants' claims of trial errors did not meet the threshold for a substantive appeal, and thus the applications were dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I therefore commence by giving a factual overview.2. FACTUAL BACKGROUND2.1 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.

Evidence

Evidence Before The Court

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 COUNT3.1 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.