R v Bunting & Ors (No 3)

R v BUNTING & OTHERS (NO 3)
[2003] SASC 251
Criminal: Reasons for Rulings

MARTIN J John Justin Bunting, Mark Ray Haydon and Robert Joe Wagner were charged jointly with 11 counts of murder alleged to have been committed between December 1995 and May 1999. In addition, Bunting and Haydon were charged jointly with a further count of murder alleged to have been committed in 1992 and Wagner was charged with Assisting Offenders in connection with that crime of murder. Prior to the empanelment of the jury, each accused sought an order that they be tried separately from the other accused. In addition there were applications for severance of counts. Following lengthy submissions I made various rulings which had the effect of separating the trial of Haydon from the trial of Bunting and Wagner and of requiring Bunting and Wagner to be tried together on all counts. I now set out my reasons for making those orders.
Charges
It is the Crown case that the murders were committed as part of a joint enterprise between the accused which had as its object or common purpose the killing of persons it was considered appropriate or necessary to kill. The Crown allege that the enterprise began with the intention of killing persons believed to be paedophiles, but developed to encompass others it was considered appropriate to kill for varying reasons.
All counts except Count 2 charge the crime of murder. Bunting and Haydon are charged with Count 1 and Wagner is charged with Count 2. All three accused are jointly charged on the remaining counts. The counts, dates alleged and victims are as follows:
Count 1:     9 July 1992 ‑ 31 August 1992:                 Clinton Douglas Trezise
Count 2:9 July 1992 ‑ 31 August 1992:  Assisting Offenders with respect to the crime charged in Count 1
Count 3:     25 December 1995 ‑ 21 January 1996:             Ray Allan Peter Davies
Count 4:     20 November 1996 ‑ 10 December 1996: Suzanne Phyllis Allen
Count 5:     31 August 1997 ‑ 17 September 1997:             Michael James Gardiner
Count 6:     15 October 1997 ‑ 15 November 1997:            Barry Wayne Lane
Count 7:     3 November 1997 ‑ 6 November 1997:            Thomas Eugenio Trevilyan
Count 8:     3 April 1998 ‑ 8 April 1998:  Gavin Allan Porter
Count 9:     25 August 1998 ‑ 8 September 1998:               Troy William Youde
Count 10:     16 September 1998 ‑ 19 September 1998: Frederick Robert Brooks
Count 11:     27 October 1998 ‑ 14 November 1998:            Gary O’Dwyer
Count 12:     20 November 1998 ‑ 26 November 1998: Elizabeth Haydon
Count 13:     9 May 1999:  David Terence Johnson
It is the Crown case that Bunting and Haydon actively participated in the murder of Trezise and that Wagner assisted them after the murder. The Crown says that Bunting and Wagner actively participated in the other murders. As to the involvement of Haydon in the other murders, it is the Crown case that he was present when Youde (Count 9) was killed. There is no evidence to suggest that Haydon was present at the time that any deceased other than Trezise and Youde were killed. However, the Crown says that he was party to a common purpose which encompassed the killing of all the deceased and that on each occasion he was ready, willing and able to assist.
In order to determine the applications for separation and severance, it is necessary to consider the proposed evidence and its likely cogency in considerable detail. Any assessment of the evidence is necessarily provisional as it is based upon statements, limited oral evidence at the preliminary examination and lengthy interviews with Vlassakis and other witnesses. It is also necessary to address questions of admissibility, risk of misuse and potential prejudice that might be caused in a joint trial. In addition, counsel raised questions as to the capacity of a jury to cope with a single trial on all counts. It was argued that the volume of material is so great that a jury would be unable to assimilate, recall and properly assess the evidence such that the accused will be deprived of their right to a fair trial. Counsel contended that the directions as to the proper uses of evidence would be so lengthy and complicated that a jury would not have the capacity to fully understand and apply the directions. Alternatively, the risks in these respects are so great that some form of separation or severance is necessary in order to achieve a fair trial.
James Spyridon Vlassakis
In canvassing the evidence with respect to each count, repeated reference is made to evidence that the Crown intends to lead from Mr James Vlassakis. He was originally presented jointly with the accused on five of the 12 counts of murder. The preliminary examination commenced on 13 December 2000. On 21 June 2001, prior to the conclusion of the preliminary examination, Vlassakis was presented in the Supreme Court on an Information charging him with four of those five counts of murder. He pleaded guilty to those four counts (Youde, Brooks, O’Dwyer and Johnson). The Crown discontinued the fifth count of murder (Porter) in the Magistrates Court.
Police first conducted an induced interview with Vlassakis in May 1999. Following his pleas of guilty, over the period 24 July 2001 to 28 September 2001 a second interview was conducted which comprises almost 2,000 pages of transcript. The content of the second interview is presented by the Crown as containing, in substance, the evidence that the Crown intends to lead from Vlassakis. References throughout these reasons to what Vlassakis says are references to what the Crown, based on the interviews, understands Vlassakis will say in evidence.
Addresses
In these reasons, reference is made to a number of addresses. At different times Bunting lived at 203 Waterloo Corner Road, Salisbury North, 3 Burdekin Avenue, Murray Bridge and 49 Bundarra Court, Craigmore. I will refer to those premises as Waterloo Corner Road, Burdekin Avenue and Bundarra Court. Wagner lived at 36 Mofflin Road, Elizabeth Grove and Haydon lived at 4 Blackham Crescent, Smithfield Plains. I will refer to those premises as Mofflin Road and Blackham Crescent.
In the reasons that follow, under the headings of each deceased I have endeavoured to summarise the main features of the evidence with respect to each count.
Clinton Trezise – (Counts 1 and 2)
A body said by the Crown 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 which were consistent with having been caused by blows from a blunt object to the back of the head.
Trezise was last seen alive in August 1992. Counsel for Bunting submitted that a real issue exists as to whether the Crown is able to prove that the body found at Lower Light on 16 August 1994 was that of Trezise. Dr Jane Taylor has compared a 1989 X‑ray of the deceased’s skull with the skull of the body found at Lower Light. She has expressed the opinion that the X‑ray is probably a picture of the same skull that was located at Lower Light.
Trezise was known to Bunting and Wagner. At the relevant time Haydon was associating with Bunting. Ms Raelene Brown met Bunting in about August or September 1993. She met Haydon in about January or February 1994. He was introduced by Bunting as a friend. She saw Haydon with Bunting on about four occasions up to April 1994 when she shifted address.
Brown says that Bunting visited her and her fiancé on a few occasions before introducing Haydon. From that time on, Bunting was always in the company of Haydon. She says that from about the second visit onwards, Bunting was always talking about killing and torture. On the occasions that she saw Bunting and Haydon together at her home, she heard them talk about “weird things”. Bunting did most of the talking. Haydon was quiet and rarely spoke. Bunting spoke in detail about paedophiles, homosexuals and torturing and killing people, as well as making people disappear. A jury could infer that Bunting displayed a hate for paedophiles and homosexuals. Brown recalls mention of the names Robert Wagner, Barry Lane and Von Einem.
The first statement given by Brown is dated 30 July 1999. In that statement there is no mention of the name Trezise. In a later statement dated 18 December 2000, Brown says that the name Trezise “constantly came up in the conversations” with Bunting and Haydon. She recalls that they said Trezise was gay, but they were not sure whether he was “into the kids as well”. Bunting had said that Trezise “didn’t deserve to live”.
Brown was cross-examined during the preliminary examination about the mention of Trezise. In that evidence she said that the name came up when she first met Bunting and she was not sure if it had been mentioned again.
Trezise and another deceased, Lane, had been homosexual partners. At the time that Trezise disappeared, Wagner and Lane were living together in a sexual relationship.
On 5 May 1997 a television programme called “Australia’s Most Wanted” presented a missing persons segment concerning Trezise. On 27 August 1998 the same programme showed footage of the skeleton at Lower Light, but no connection was made by the programme between the skeleton and Trezise. According to Vlassakis, the latter programme was watched by him in company with his mother, Ms Elizabeth Harvey, and Bunting. Harvey, who was then married to Bunting, has died of cancer. Vlassakis says that when reference was made to the body at Lower Light, Bunting said “That’s my handiwork”. Subsequently Bunting told Vlassakis that he and Haydon murdered Trezise at Waterloo Corner Road. Bunting also said that he had Lane and Wagner assist in burying the body. According to Vlassakis, Wagner told him that Bunting asked Lane and Wagner to assist and that they had been involved in burying the body. On occasions Wagner said “We have buried someone out there”.
The above account by Vlassakis was given in his second interview. In the first interview of May 1999, Vlassakis said that he thought Bunting told him that it was just Bunting who killed a person identified as “Happy Pants”. In another answer he said he was not sure if he was told that it was Bunting alone or Bunting and Haydon. In the first interview Vlassakis said he thought Bunting told him that he had “lost it” and “smacked” the deceased on the head with a hammer. In the second interview he said he did not think he was told how the deceased had been killed and speculated that there was mention of strangling or hitting with a hammer.
As to why “Happy Pants” was killed, in the second interview Vlassakis says that he was not given a reason, but adds that Bunting said that the deceased was a paedophile. At that time Vlassakis did not know the proper name of the deceased as Bunting referred to him as “Happy Pants”. He identified that person as Trezise after reading the post‑mortem report and the Crown evidence.
On 25 May 1999, four days after the accused were arrested, Vlassakis participated in a telephone conversation which was recorded on a telephone intercept. He was heard to mention the statement by Bunting to the effect of “that’s my artwork” and he made reference to the inability of the authorities to identify the body. Vlassakis then spoke of he and his mother making a statement which would enable the authorities to “pin” the crime on Bunting/“them”. On one view the recorded statement could be seen as demonstrating that Vlassakis was preparing to make a false statement to the authorities. On the other view, he was merely commenting on the effect of his knowledge if he spoke to the authorities.
In his second interview on 25 July 2001, Vlassakis initially says that he is unable to remember Haydon saying anything about Trezise. However, in the continuation of that interview on 23 August 2001, Vlassakis spoke of a conversation between Bunting and Haydon about Trezise. The Crown rely on this conversation as an admission by Haydon of his involvement in the murder of Trezise:
“QMm. Now, take your time before you answer this question, please, but - and I know you will - can you recall if Mark Haydon was ever present during any conversations regarding Happy Pants.
AAny conversations or - from when - when John Bunting was talking to me about it? No, I couldn’t say. Like, I can’t remember Mark Haydon being present, no, I think there was a conversation with Mark Haydon and John Bunting - I couldn’t actually call it a conversation, like it was more comments made by John Bunting and Mark Haydon about Happy Pants, which is Clinton Trevice - Trezise.
QMm’hm.
AThere were comments about him made, that I remember by Mark Haydon, but I don’t actually remember any - like a conversation when Mark Haydon was present, exactly what happened during the murder. I just remember a few comments about Happy Pants. I remember there was - Mark Haydon said something about the - the clothes he used to wear, the pants. That was also - I can’t remember if Mark Haydon was present when John Bunting told me that Mark Haydon had told Elizabeth Haydon about the murder of Happy Pants. I - I’m not sure if he was present on that conversation.
QWho was that conversation between again.
AI remember myself, John Bunting.
QMm.
A[A]t 4 Blackham Crescent, when we were living at 3 Burdekin Avenue, and commuting every day to Adelaide.
QMm’hm.
A[A]nd seeing Mark Haydon and Elizabeth Haydon, Gail Sinclair, and before Fred Brooks’ murder there was a conversation between John and myself about Elizabeth Harvey - Elizabeth Haydon, and the fact that Mark Haydon had told Elizabeth Haydon about Clint - well, Happy Pants’ death, how - the fact that they used Barry Lane and Robert Wagner to take the body and what happened on the day and that, on the actual murder - what happened there. I remember that conversation at the house with John Bunting, but I just can’t remember if Mark Haydon was actually talking. No, so Mark Haydon was telling John Bunting, and I was there, that he had told Elizabeth about the murder - or Audrey about the murder. Mark Haydon was telling - I was there, John Bunting, Mark Haydon and Mark Haydon was telling John Bunting of what he said to Elizabeth Haydon, and Mark Haydon and John Bunting were talking - I didn’t make any comments. I was just listening to that conversation between them two and then it was after that, I think on the way home, that John Bunting then again told me a few things of what happened on that night, or day - sorry, day - and the fact that Veronica, John Bunting’s wife, had to - when she came home there was all the blood on the floor and that, and how she had to clean it up. That’s the only conversation that I remember, like a conversation with Mark Haydon and John Bunting about that. That’s why I said I can’t really call that a conversation because I wasn’t talking in that conversation, I was just listening. It was between John and Mark.”
A little later in the interview, Vlassakis gave further answers concerning the conversation that he overheard:
“QOkay. If I can just take you back to the conversation at 4 Blackham which you were - you could hear but you weren’t - you didn’t take a part in.
AYeah.
QIt was a conversation between Mark Haydon and
AJohn Bunting.
QJohn Bunting. Do you know why the subject of Happy Pants come (sic) up.
AThat’s what I said, I can’t remember why the subject came up, but it was Mark Haydon talking to John Bunting and telling him the fact that he told Elizabeth Haydon - Audrey - of what happened to Happy Pants.
QMm.
AWell, the murder of Happy Pants, that - and he was saying that he - how he was involved and - and had that - you know, he told her everything, that - you know, that Robert and - after John had killed Happy Pants, that they went down the road and they grabbed Robert and Barry - Robert Wagner and Barry Lane - because they were together - living together at that stage - and the fact that they drove out there and the fact that the body had been found and things like that. So they - he was telling John that he told Audrey in that - in conversation between them two.”
Vlassakis also relates an event relevant to the murder of Trezise that he says he witnessed during the murder of Youde (Count 9) in late August or early September 1998. He says that shortly before Wagner strangled Youde, Bunting knelt down in front of Youde and started to list the names of the people he had killed. According to Vlassakis, Haydon participated. Vlassakis gave the following descriptions of that episode:
“... just before Robert started to strangle Troy, John Bunting had knelt down and started to say to Troy of the people that he had killed. And Mark Haydon was in there and he would list off the names which were the people that had previously been murdered, which was Happy Pants, then they said Ray - or actually Jimmy, which was Ray Davies - Barry, Michael, Barry Lane and Michael Gardiner, and Gavin Porter. Well, they actually just - just said their first names, and repeated a few of the names and John was saying, ‘Oh, there’s too many’ and then he would - then he asked Mark if he left any out and Mark said a few - a couple of names, and that was it, and that’s when Robert started to strangle Troy.
...
QOkay. Present in the bathroom when Troy was being killed.
AYeah.
Q[Y]ou’ve previously mentioned that Mark Haydon was present.
AThat’s correct.
QWas Mark reading off anything.
ANo, no, he was just - as I said, John Bunting used to tell Mark of everything that happened.
QMm’hm.
AOf all the murders, everything he used to tell Mark.
QMm’hm.
AWhen he started listing off the names to Troy, Robert was also saying a few names and he asked Mark did he leave any out, and then he asked Robert if he’d left any out, and then he asked me if he left any out.
QMm’hm.
AAnd Mark is like was thinking and Robert was saying a few names and that, and then Mark said a few and
QOkay. Do you recall what names Mark Haydon used, or said.
ANo, he just repeated the names that John Bunting said already.
QOkay. And did those names include Happy Pants.
AYes.
QDo you actually recall that.
AYes, that was the first name that was mentioned by John and - by John, Robert and Mark. I do also remember a conversation with Robert about Happy Pants as well, having with Robert about the - when they - when - he used to talk about that all the time actually. It was when John come (sic) down to ask Barry Lane and Robert to take the - Happy Pants to where they buried him and that. He also said about the fact that the ground was like clay and that and they couldn’t dig very far and that.
QThis is a conversation you had with Robert Wagner.
AYes, and John Bunting.
QYeah.
AThere was (sic) quite a few on that topic.
QWas Mark Haydon every (sic) present for those conversations.
ANot - not with Robert Wagner, no.
QOkay.
AThere was only that - the only conversation I remember with Mark Haydon was with - with - when he said that he told Audrey.
QOkay.
AAnd there was (sic) also some details given, but I can’t remember the details.”
The Crown also sought to rely upon evidence to be given by Mr Anthony Stewart. Elizabeth Haydon was his sister. He says that during a conversation with Haydon and others in mid‑1994, he spoke of difficulties he was experiencing with his brother and commented that he would like to make his brother disappear. Later in the same conversation a female person expressed concern about a male person finding her. In this context, Stewart says that Haydon said words to the effect:
“You don’t have to worry about him. I made someone else disappear and the police will not find him.”

Ms Tammy McKenzie was Stewart’s partner. According to Stewart, she was present during the conversation. McKenzie’s statement refers to an occasion which may not be the same occasion to which Stewart refers. She heard a conversation between Stewart and Haydon in which Haydon was upset by a comment made by Stewart and threatened to punch Stewart’s head in. She says that as the conversation proceeded, Haydon said something similar to “I murdered someone”. She is unable to recall the precise words, but says it was as if Haydon was bragging to Stewart. According to McKenzie, Haydon said that a couple of friends had helped him kill a male person and then get rid of the body. He said that the person had done something to annoy and upset him and, as a result, Haydon and his friends murdered that person. Haydon said something like “That’s one body they’ll never find”.
Ms Veronika Tripp met Bunting in about January 1989. She says that in 1993 she and Bunting had dinner with Wagner and Lane at 1 Bingham Road, Salisbury North. Those premises were occupied by Wagner and Lane. After a discussion between the three men, the contents of which Tripp did not overhear, the men left the premises. Lane locked Tripp inside the house. She saw them walking toward Waterloo Corner Road. It was still daylight. The men arrived home at about 10.00 pm. A few days later Lane spoke to Tripp and told her that he had helped dispose of a body.
On a subsequent occasion, Lane again told Tripp that he had helped dispose of a body. He told Tripp that Bunting had killed someone at Waterloo Corner Road by hitting “it” on the head with the back of a shovel. He said they disposed of the body at Lower Light. During one of the conversations Lane mentioned the name Colin Trezise. Lane told Tripp not to mention the conversation to Bunting.
Tripp says that she told Bunting what Lane had said to her. She asked Bunting what Lane was talking about and Bunting told her that he was making it up and to ignore him. Tripp says that in subsequent conversations Bunting told her that he had killed a person called Clinton Trezise and buried him at Lower Light. He told Tripp to be quiet about it and not to tell anyone.
Lane also made statements to other persons from which a jury could infer that Lane had knowledge of the murder of Trezise.
Counsel for Bunting urged that particular care is needed in considering the reliability of the evidence given by Tripp. From cross‑examination at the preliminary examination, it emerged that Tripp has suffered from both physical and mental disabilities. Counsel suggested that when Tripp gave her evidence it was obvious that she is a person of limited capacity.
Ray Davies - (Count 3)
Davies was last seen alive in late 1995. On 26 May 1999 police found the body of Davies buried in a hole at the rear of Waterloo Corner Road. The body of Suzanne Allen (Count 4) was found in the same hole three days earlier. At the times Davies and Allen disappeared, the property was occupied by Bunting.
The cause of Davies’ death was not apparent on post‑mortem examination.
In about 1993, Davies and Allen had a relationship and lived together. The relationship ended after Allen’s grandsons complained that Davies had made sexual advances to them. They remained friends and, immediately prior to his disappearance, Davies was living in a caravan parked at the rear of Allen’s home at 3 Ghent Street, Salisbury North. The accused and Vlassakis were associates of Allen. There is evidence of an association involving Davies, Lane and Wagner.
Ms Annette Cannon is the daughter of Allen and the mother of the boys to whom Davies was said to have made the advances. She spent Christmas Day 1995 with Allen and Davies. The following day her seven year old son told her and Allen that Davies had sexually assaulted him and tried to sexually assault another of Cannon’s sons. Cannon and Allen reported the matter to the police. On their return to the home, Davies had left. His caravan and belongings were still at the premises.
Cannon did not see Davies again. Subsequently Cannon observed Bunting, Wagner and Allen cleaning out the caravan. Bunting gave Cannon a photo of her two sons which had apparently come from the caravan. Bunting commented that Davies was a paedophile and that was why he had the photograph.
Within approximately two weeks of Davies disappearing, Cannon saw Bunting, Wagner and Lane remove the caravan. The caravan was towed by a vehicle driven by Lane. Vlassakis says that he saw the caravan in the front yard of premises at 14 Catalina Road, Elizabeth. Those premises were occupied by Haydon and Elizabeth Haydon. Harvey also lived at those premises. Vlassakis was involved in cleaning up the caravan and painting it. Bunting and Haydon were also involved.
The caravan was sold while at 14 Catalina Road. It was towed away from the premises on 20 January 1996. A receipt for the sale was subsequently found in a U-Store-It premises rented by Bunting. The signature on the document was written by Bunting. Vlassakis was present and observed Bunting sign the document. The registration papers for the caravan were located in a wallet found in a black “bum bag” in a Ford Marqis at Mofflin Road. The Marquis was registered in the name of Laura Martin. That name was used by Harvey.
Two or three weeks after the caravan was removed from Allen’s premises, Cannon overheard a conversation between Allen and Bunting at Waterloo Corner Road. Wagner was present. Cannon’s statement reads as follows:
“I heard John [Bunting] say to Chris and Mum [Allen] words to the effect of, ‘We took Ray for a drive in the car.’ I know they had a white Torana at the time. John said while he was driving, ‘Robert [Wagner] was pounding him down and trying to keep him down so that no‑one could see what was going on in the back seat.’ He made hand movements indicating punching down. It sounded like Ray was on the floor of the car. He said that they ‘dropped him off in the middle of the scrub somewhere and made him walk back towards town.’ They didn’t say if he was hurt or bleeding or anything. John was laughing about it. Robert had a big cheesy smile on his face. He didn’t say much apart from saying it was really good. They did not say why they were taking Ray for a ‘drive’. I did not tell either of them that Ray had interfered with my children. The only people I told were the police and my mum. My mum looked a bit stunned when Bunting told her this.”
As mentioned, the body of Davies was found in a hole at the rear of premises that had been occupied by Bunting at Waterloo Corner Road. Bunting moved into those premises with his partner Tripp in early 1991. Lane and Wagner were visiting next door at 205 Waterloo Corner Road in the premises of Mr Robert Skewes. Those three men helped Bunting and Tripp move into the premises. This was the occasion on which Bunting first met Wagner and Lane. According to Tripp, about a year after they moved in Bunting began digging under a tank stand at the rear of the premises. Tripp understood that Bunting was digging a tunnel. He told her it was going to be a bomb shelter. Bunting began the work on his own. Subsequently Wagner and Haydon assisted him.
According to the neighbour Skewes, the hole was filled in by Bunting, Wagner and Lane. They used bricks and soil. After Bunting vacated the premises, Skewes was aware of the ground in the area of the hole sinking. In late 1998 or early 1999 while the house was vacant, Bunting and Wagner visited Skewes. Bunting asked if the hole was still under the tank stand and commented that if it was the Housing Trust would bill him for it. Bunting and Wagner had a look at the hole under the tank stand. They told Skewes it had sunk a bit and that they would obtain some ready‑mixed concrete to put over the top. They left and returned the same day with two bags of cement which they mixed on the driveway of the premises occupied by Skewes. They used two bags and apparently put the mixed cement into the hole.
The Crown also relies upon admissions to Vlassakis. In the first interview he says he was told by Bunting that “they” took Davies from Ghent Street to Bakara, a property approximately 21 kilometres from Swan Reach. He was told that “they” tortured Davies at Bakara and then, while he was still alive, took him to Waterloo Corner Road. Vlassakis says he was told by Bunting that, at Waterloo Corner Road, Wagner strangled Davies using jumper leads. The strangling occurred in the bathroom. At the time of the strangling Vlassakis’ mother, Harvey, was in the kitchen.
In his second interview, Vlassakis gives a similar version about the taking of Davies to Bakara, the torture and returning to Waterloo Corner Road. Vlassakis says Bunting told him “they” put Davies in the “hole”. He also says he was told that his mother became involved. She stabbed Davies up and down his legs with a ceramic cleaning tool. Vlassakis was told that his mother and Wagner together strangled Davies. Harvey died before the second interview. Vlassakis says that he did not previously mention his mother’s involvement because he wanted to protect her.
According to Vlassakis, he gained the information by hearing bits and pieces from Bunting over a period of time. As to a motive, he said he was told by Bunting that Davies was a paedophile and had interfered with Cannon’s children. Vlassakis says that both Bunting and Wagner talked freely about killing Davies. He said they made jokes and laughed about it. They laughed as they were telling him about torturing Davies. Vlassakis says that there was no suggestion that Haydon was involved in the murder of Davies, nor was Haydon present at conversations about this murder.
According to Vlassakis, Bunting told him that he, Vlassakis, knocked on the door at about the time Davies was being killed and was told to go away. Vlassakis says that there was an occasion when he knocked on the door and, after a delay, the door was answered by his mother. Bunting and Wagner were in the premises. He could see that Wagner was holding something about the size of a jack handle in his hand. They told him to go away and not come in.
Vlassakis also said that the name “Jimmy”, which was a reference to Davies, was one of the names listed by Bunting to Youde immediately before the murder of Youde.
As will appear later in these reasons, the Crown seeks to demonstrate that the accused sought to benefit from the deaths of a number of the deceased by making use of their property. This included the sale of Davies’ caravan. In addition, the Crown sought to establish that the accused created the impression that a number of the deceased were alive in order to ensure the continuation of social security benefits (“Centrelink benefits”) being received by the deceased and to enable the accused to access those benefits. The first deceased in respect of which such a fraud was perpetrated was Davies.
By various means it was represented to Centrelink that Davies was still alive. Seven changes of address for Davies were notified after his death. At one of those addresses, the Riversedge Caravan Park at Tailem Bend, Bunting impersonated Davies and stayed at the caravan park. A receipt in respect of the payment for that accommodation in the name of Davies was subsequently found in the Ford Marquis at Mofflin Road. One of the addresses given to Centrelink was a former address occupied by Wagner and Lane and another was next door to the former premises of Bunting at Waterloo Corner Road.
On a number of occasions between January and April 1999, Bunting was filmed by security cameras accessing Davies’ account. Banking records demonstrate that from about the time Bunting commenced living at Murray Bridge, the vast majority of withdrawals occurred at Murray Bridge locations. Withdrawals at Murray Bridge ceased at about the time that Bunting returned to Adelaide to live. On 23 December 1996 and 18 September 1997, within a minute or so of withdrawals from Bunting’s account, withdrawals occurred at the same location from the accounts of Davies and another deceased, Allen. It appears that approximately $32,000 was falsely obtained by accessing Lane’s benefits.
The Crown sought to link both Bunting and Wagner to the ongoing fraud by reference to documents found at Bundarra Court and Mofflin Road. Numerous documents connected to Davies were found in the house and rear yard at Bundarra Court. A number of similar documents were found in the Ford Marquis at Mofflin Road.
In addition to documentation related to Davies, the Crown also relies upon items found in the U-Store-It unit rented by Bunting. DNA consistent with that of Davies was found on a blood stained t-shirt, underpants stained with blood and faeces, a blood stain on an electrical cord and the outer surface of a glove found in the unit. A letter sent to Davies by his parents after Davies’ disappearance was also located in the unit.
Suzanne Allen - (Count 4)
Allen was last seen alive in late November 1996. As mentioned, her body was found on 23 May 1999 in the hole at the rear of Waterloo Corner Road above the body of Davies. A post‑mortem examination was unable to determine the cause of her death. There were no fractures. Dismemberment and defleshing had occurred. Parts of Allen’s body were found in eleven plastic bags. Remnants of rope were found in two of the bags.
By late 1995 Bunting and Allen had a relationship. Bunting ended the relationship by mid 1996. It appears that Allen was unwilling to accept that the relationship was finished. Bunting told Allen’s daughter, Annette Cannon, that he was sick of receiving notes from Allen and to tell Allen to stop sending notes and driving past the residence occupied by Bunting.
Vlassakis says he was given information about the death of Allen. However, the information provided to Vlassakis by Bunting is an unusual aspect of the Crown case because Bunting told Vlassakis that Allen died of natural causes. According to the Crown that statement was untrue. Vlassakis says that Bunting told him that he and Wagner were involved in a “slice and dice” meaning they dismembered Allen’s body. He was told that Allen’s dismembered body was put in the same hole as the body of Davies. Both Bunting and Wagner gave information about Allen’s death to Vlassakis.
According to Vlassakis, Bunting wanted Allen’s property and pension. Bunting and Wagner were also involved in removing the property of Allen from her home shortly after her disappearance. They were observed removing property on 3 December 1996. A neighbour called the police who were told that Bunting and Wagner were helping a friend move house. A contact number was given to the police. That number was in the name of Laura Martin, a name used by Harvey. When police communications called the number, a woman answered and said Allen was not available.
Bunting assumed control of Allen’s Nissan Pulsar motor vehicle. He took it to the home of Wagner’s mother. He said it needed repairing. Subsequently, with the assistance of a witness, Mr Freeman, the Pulsar was moved to Burdekin Avenue. The vehicle was then re-registered and insured in the name of Harvey. On 18 September 1998 Bunting and Vlassakis were in the vehicle when it caught fire. A claim was made pursuant to an insurance policy and the proceeds were paid to Harvey.
For the purposes of removing property from Allen’s home, Wagner borrowed a truck from a business called Steptoe & Son. When the truck was returned, Wagner was with Bunting. Some of Allen’s property was sold to the owner of the truck for $10.
Ms Jodie Elliott was a friend of Bunting. In 1998 she had a relationship with Bunting. Elliott lived at Blackham Crescent with Haydon and Elizabeth Haydon. She slept in the shed at the rear of the premises. Bunting arranged for Harvey and Elliott to impersonate Allen for the purpose of maintaining Allen’s pension. Bunting derived financial benefit through that fraud. It appears that a little in excess of $17,000 was obtained from late 1996 through to 1999. Bunting was filmed accessing the benefits on two occasions. From December 1996 until early February 1999, almost all of the accesses to Allen’s account occurred at Murray Bridge. Bunting was living at Murray Bridge during this period. When Bunting moved from Murray Bridge to Adelaide, the pattern of accessing Allen’s account changed. From early February 1999 onwards almost all of the accesses occurred in the Elizabeth area.
After the death of Allen, five different addresses were provided to Centrelink as part of the representation that Allen was still alive. Two of those addresses were residences at Murray Bridge in which Bunting lived with Harvey. Centrelink documentation addressed to Allen at those addresses was subsequently located at Bundarra Court and in a Sigma motor vehicle registered to Harvey which was located at Blackham Crescent. Elliott registered a post office box address and gave that address to Centrelink as the address for Allen.
As part of providing residences in the name of Allen, on 17 September 1998 Haydon drove Elliott and Elizabeth Haydon to Owen. Bunting had found a property and told Elliott to rent the property in Allen’s name. Elliott says that Haydon drove her to Owen in Haydon’s four wheel drive vehicle because Bunting was away on a job. She signed the rental document in the name of Allen.
On 10 December 1996 Allen was reported to the police as a missing person. Elliott says that at the instigation of Bunting, in March 1999 she travelled to Berri with the intention of impersonating Allen and ringing Missing Persons. She was accompanied by Bunting and Haydon. They travelled in Haydon’s motor vehicle and he drove. Bunting sat in front and Elliott in the rear. During the trip Bunting talked about Allen and gave Elliott details of Allen’s background and family history. Counsel for Haydon pointed out that initially Elliott told the police that the purpose of the trip was not discussed until after they had arrived at Berri.
A large amount of documentation connected to Allen was found in various rooms at Bundarra Court and in the ceiling of those premises. That documentation included a memo book containing the writing of the deceased Gardiner. A loose page in that book contained personal details of Allen in the handwriting of Bunting. A pink dressing gown belonging to Allen was found in a plastic bag in the ceiling.
At Blackham Crescent, documentation relating to Allen was found in Elliott’s briefcase in the lounge room and in the shed occupied by Elliott. Documentation relating to Allen was also found in a Sigma motor vehicle registered in the name of Harvey which was parked at Blackham Crescent.
On 18 December 1998, police seized clothing from the main bedroom at Blackham Crescent as part of their investigation into the disappearance of Elizabeth Haydon. Some of that clothing was subsequently identified as belonging to Allen. However, Elliott identifies the clothing as belonging to Elizabeth Haydon.
After the disappearance of Allen, Bunting and Wagner were both involved in telling false stories about Allen and her whereabouts to a close friend of Allen, Ms Carol Parker. Details were provided mainly by Bunting, but often in the presence of Wagner. At times Wagner would support Bunting. Vlassakis was present on occasions and joined in the giving of the false stories. Haydon was also present on one occasion. However, Parker did not meet Haydon until about January 1999.
On 1 April 1997, as a result of the missing persons report, police spoke to Bunting. He said that Allen had stayed with him, but had moved to Tasmania or Mildura. She did not want her brother to know her whereabouts. Bunting told the police that he would have her contact Missing Persons. On 2 April 1997 an officer telephoned the address at which Bunting was living and spoke to a person identifying himself as Bunting. The officer was told that originally Allen had left for Tasmania at about Christmas time 1996. The officer was also told that Allen had recently stayed with Bunting for a few days, but had left for Tasmania or Mildura. Bunting said he believed that she was engaged to a Tasmanian called Andy and that she was driving his vehicle.

Counsel for Haydon drew attention to evidence of Elliott. In her interview with the police she describes how Bunting arranged for her to impersonate Allen. During cross‑examination at the preliminary examination, Elliott said that when she discussed with Bunting matters pertaining to the impersonation of Allen, the discussions were private. They took place in the shed or she and Bunting whispered. It appeared to her that Bunting did not want Haydon to know about the matters they were discussing. These conversations occurred in 1998. On the Crown case, eight murders had been committed prior to the conversations in the course of an ongoing enterprise. Counsel for Haydon asked why Bunting would be seeking to keep the impersonation of Allen a secret from Haydon if Haydon was part of an ongoing enterprise to kill as alleged by the Crown. In response, the Crown referred to the evidence of Elliott concerning the trip in March 1999 to Berri which is discussed earlier in these reasons.
Michael Gardiner - (Count 5)
Gardiner was last seen alive early in September 1997. His body was found in a barrel in the bank vault at Snowtown. The barrel also contained the body of Lane. A rope was around the deceased’s neck with a slip knot behind his right ear. His left foot had been removed.
Gardiner lived in the residence of Ms Nicole Zuritta, a cousin of Ms Veronica Mills (who lived with Wagner). Zuritta’s home address was not far from Mofflin Road. Gardiner was openly homosexual. He disappeared while Zuritta was working near Mildura. On 16 September 1997 a friend discovered that the premises had been ransacked and Gardiner was not at the premises. There was no sign of forced entry. Zuritta reported the matter to the police.
Ms Katerina Van Gelder was a friend of Gardiner. She had known him since he was about six or seven years of age. In about September 1997, Gardiner introduced her to Lane. Van Gelder asked Gardiner not to bring Lane to the house again.
At about the time that Gardiner disappeared, Van Gelder was expecting Gardiner to move to Goolwa and live at her premises. She received a telephone call from Gardiner. She could hear people in the background telling him to hurry up and get off the phone. Van Gelder says that Gardiner’s voice sounded funny in the sense of being tense or upset about something. She also noticed that he called her Auntie Kathy. She had previously told him not to call her Auntie Kathy and to call her Katrina or Kathy. After she had told him not to call her Auntie Kathy, he had not used that title until this telephone call.
Van Gelder says the call was not a local call. She heard the pips of an STD call. Their conversation lasted about three or four minutes. Gardiner told her he was okay and that he still wanted to move in with her and her children. He said it would not be long, but he had something to sort out. Ven Gelder gave him her address. She was still talking when the phone went dead.
According to Mills, Wagner did not like Gardiner because Gardiner was gay and intimidated Wagner. Mills describes an occasion when Gardiner placed his hand over a child’s mouth to stop the child from talking. Wagner was horrified. He told Mills that when he was about eight years of age the same thing had happened to him. Wagner told Mills bits and pieces, but said that if he told her what had happened she would not be able to listen because it was too graphic. Mills says Wagner could never calm down enough to tell her the story. After the incident with the child, Wagner would not allow Gardiner near their child or the other children of Mills unless he or Mills was present.
Notwithstanding Wagner’s feelings, Mills was very close to Gardiner. After his disappearance she received a message on her answering machine. The voice sounded too husky for Gardiner. In the words of Mills, “It sounded like someone putting on a fag’s voice.” The voice said that he had pinched property belonging to Zuritta and was going to use the money to get a sex change. Mills played the tape to Zuritta over the telephone.
Zuritta received a telephone call from a male person saying that Gardiner wanted his wallet because he needed his identification. She told the caller to tell Gardiner to come and get it himself and she hung up. That evening, the male person called again saying that Gardiner wanted his wallet and needed identification to get money. Zuritta said she needed her property, meaning the stolen property. The male said that Gardiner did not want to face her and asked if she would meet the caller in the park and hand over the wallet. She refused.
Zuritta then started receiving obscene calls. The caller would introduce himself as Gardiner, but the voice sounded nothing like him. Vlassakis was present when one of those calls was made from Blackham Crescent. He says the call was made by Brooks at the request of Bunting. Vlassakis is unable to say whether Haydon was present.
During the sequence of events following Gardiner’s disappearance, Wagner told Zuritta that he and Bunting had seen Gardiner at a service station on Prospect Road at Prospect. In response to a question by Zuritta, Wagner said he did not grab Gardiner and call the police because he did not want to be charged with assault. Bunting and Mills were present during this conversation.
Vlassakis provides evidence of admissions by Bunting and Wagner. He says that in about April 1998 at Burdekin Avenue, Bunting showed him a barrel which Bunting said contained the bodies of Lane and Gardiner. Subsequently, Bunting told him that Gardiner had been taken from Zuritta’s place to the shed at Burdekin Avenue. Bunting told Vlassakis that he had strangled Gardiner with a rope. There were a number of conversations about Gardiner involving Bunting, Wagner and Vlassakis. The talking was done predominantly by Bunting, but Wagner was also involved.
Vlassakis says that as far as he is aware Haydon had no knowledge of the murder of Gardiner. However, Vlassakis also says that Gardiner’s Christian name was one of the names listed by Bunting in the presence of Haydon immediately before Youde was murdered.
According to Vlassakis, Bunting asked him to obtain Gardiner’s wallet from Zuritta. He told him what to say. Vlassakis visited Zuritta and told her he was intending to commit a breaking offence and leave Gardiner’s wallet behind or something to set him up. Zuritta gave the wallet to Vlassakis. Subsequently Vlassakis gave it to Bunting.
After the disappearance of Gardiner, his memo book was found at Bundarra Court. As mentioned, the book contained a loose page on which Allen’s personal details were written in Bunting’s handwriting.
The black bum bag found in the Marquis at Mofflin Road was similar to a bum bag owned by Gardiner. A bus pass holder containing cards in the name of Gardiner was found in the bum bag. The cards had been given to Vlassakis by Zuritta after Gardiner disappeared. Vlassakis gave them to Bunting.
Barry Lane - (Count 6)
Lane was last seen alive in October 1997. His body was found in a barrel in the bank vault. That barrel also contained the body of Gardiner. There was a gag in the deceased’s mouth and tape around his mouth. A rope was around the deceased’s neck. The body had been dismembered.
Lane and Wagner had been in a relationship from about 1985 until early 1996. There is evidence to suggest that Lane was originally dominant in the relationship, but that in latter times Wagner became more assertive.
As mentioned, Lane and Wagner met Bunting when Bunting moved into the property at Waterloo Corner Road. At that time Lane and Wagner lived at 1 Bingham Road, Salisbury North. The properties were in close proximity to each other. Lane was openly homosexual. Notwithstanding Lane’s homosexuality, Bunting regularly associated with Lane. Vlassakis says that Bunting was always talking about Lane being “dirty” and Bunting told Vlassakis that Lane was a paedophile. In Bunting’s bedroom at Waterloo Corner Road, Bunting created a form of chart which has been referred to as a “rock spider wall”. The chart comprised various pieces of paper, some of which were connected by pieces of wool. On those pieces of paper Bunting wrote the names of persons that he considered were “dirty” because they were homosexuals and paedophiles. These types of people were also referred to as “rock spiders”.
Pieces of paper that had been part of the wall chart were found in the U‑Store‑It unit rented by Bunting and at Bundarra Court. The pieces of paper show that names were connected by lines in a manner that could be described as a flow chart. Lane’s name is written in the centre of one piece and is linked to other names including that of Davies. It is the Crown case that the document is in the handwriting of Bunting. Police also located a typed document which could be described as a profile of Lane.
The Crown says that notwithstanding his hatred of Lane, Bunting associated with Lane for the purposes of extracting information from Lane about paedophiles. Vlassakis says that Bunting was nice to Lane and that Bunting obtained information from Lane about different paedophiles in the area. Vlassakis also refers to conversations between Wagner and Lane about “dirties” in the presence of Vlassakis and Haydon. If information was provided, Bunting would check whether the name was on the wall chart. He used post-it note stickers to add names or details.
It is the Crown case that there was an additional reason for killing Lane. As mentioned, Lane told Tripp that he had helped dispose of a body. He told her that Bunting had killed someone by striking the person on the head with the back of shovel and that the body had been disposed of at Lower Light. The Crown submitted that the statements by Lane to Tripp demonstrate that Lane had knowledge of the murder of Trezise and that Lane posed a risk to those involved in killing Trezise. Vlassakis says Bunting spoke of Lane having a “big mouth”.
Further evidence of the attitude of Bunting and Wagner to Lane is provided by officers of Family and Youth Services (“FAYS”). On 9 April 1996, Ms Julie Stevens of FAYS was allocated a file in connection with Lane which involved questions of child protection and supervised access. On 5 June 1996, using the name Christine Johnson, Elizabeth Harvey contacted Stevens about Lane. An interview was conducted at which Bunting was present. Bunting gave the address of 14 Catalina Road, Elizabeth. Subsequently Wagner was present. Allegations were made that Lane had sexually interfered with the brother of Vlassakis. Stevens was also told that Wagner was thirteen and a half years of age when Lane “got his hands on him”.
Late on 17 October 1997 or in the early hours of 18 October 1997, Lane rang his mother, Mrs Sylvia Lane. Vlassakis says this call was made at the instigation of Bunting with the intention that Lane would abuse his mother and tell her he was travelling to Queensland. Mrs Lane says that when Lane telephoned her, he said he was travelling to Queensland to see his sister, Ms Krystal Spencely-Smith. Lane called his mother a lot of bad names. He told her he did not want anything to do with her or the family. Trevilyan was in the background spurring Lane on.
Mrs Lane told Spencely-Smith that Lane was on his way to Brisbane. A few minutes after receiving that information, Spencely-Smith received a call from a person who identified himself as her brother Barry saying he would be with her in a couple of days. Spencely-Smith thought it was Lane, but the conversation was odd because the caller did not identify himself in the manner usual for Lane by saying “It’s Barry”.
Bearing in mind the evidence of Vlassakis discussed later in these reasons that Bunting told him Trevilyan was involved in the murder of Lane, the Crown also sought to lead evidence that Lane was scared of Trevilyan. According to Mr Bruce Balmer, a friend of Lane, during an evening on about 12 October 1997 he received a telephone call from Lane who was extremely distressed and frightened. At Lane’s request, Balmer went to the premises, arriving at about 10.20 pm. Lane appeared to be distressed, but Trevilyan was quiet. After about twenty minutes of casual discussion, Lane left the premises. In the absence of Lane, Trevilyan told Balmer that he liked Lane but was sick of Lane’s sexual advances. Lane returned at about 11.00 pm and Trevilyan went for a walk. In the absence of Trevilyan, Lane asked whether Trevilyan had mentioned threatening Lane. He then expressed fears for his life. Lane pleaded with Balmer to stay the night, but Balmer declined.
On 27 October 1997 an ex fiancé of Lane, Ms Michelle Bihet, reported Lane missing. On 30 May 1998 police telephoned the number connected to Mofflin Road. The officer spoke to a person identifying himself as Wagner. She was told that he had seen Lane a couple of weeks earlier at the Elizabeth City Centre shops. Wagner said Lane was with a teenage boy and that Lane did not see Wagner as Wagner had seen Lane first and avoided him.
Wagner also gave a false story to Mr Henry Smith, the proprietor of Steptoe’s Cheap Mart at Elizabeth South. Smith knew Wagner and Lane as regular customers. He was aware of their relationship and of the end of that relationship. Smith says that in about September 1998 he commented to Wagner that he had not seen Lane for some time. Wagner told him he was not likely to see Lane as Lane had sold a car to some bikies and had done “a runner”. Wagner said that when the bikies found him, Lane would be face down dead somewhere.
Vlassakis provides evidence of admissions by Bunting and Wagner to the murder of Lane. He says they bragged about it together. Bunting told him of torturing and murdering Lane. He said that Trevilyan was involved. The description given by Bunting to Vlassakis implicates both Bunting and Wagner in the torture and murder of Lane. Bunting spoke of Lane having raped and abused Wagner when he was a child. Bunting talked of a financial benefit in connection with Lane as icing on the cake.
Vlassakis says that, on the information given to him, Haydon was not involved in the murder of Lane. However, he says Haydon was present for conversations about Lane’s murder. In particular, Vlassakis recalls a conversation when Bunting and Wagner told Vlassakis and Haydon about wrapping Lane’s body in a carpet. In addition, Lane’s name was one of those mentioned by Bunting to Youde shortly before the murder of Youde.
After the murder of Lane, Bunting took possession of Lane’s motor vehicle. He took the motor vehicle to the home of friends, Mr and Mrs Freeman. He said he had purchased the vehicle from Lane for a television receiver and $50 cash. Later Bunting and Mrs Freeman were involved in swapping Lane’s vehicle for an orange Sigma.
At the time of his disappearance, Lane was in receipt of Centrelink benefits. The locality of withdrawals changed in October 1997. The majority of withdrawals had previously occurred in the areas of Rostrevor, Hectorville and Newton. From 27 October 1997, almost all of the withdrawals occurred in the Smithfield, Elizabeth and Munno Para areas. It is the Crown case that Wagner was filmed accessing Lane’s benefits.
Two changes of address were given to Centrelink for Lane. There is no record of Lane having lived at either address. Both addresses are close to Mofflin Road. The first address was vacant between 17 November 1997 and 26 June 1998. The second address was vacant between 18 November 1997 and 14 August 1998. The card necessary to gain access to Lane’s account was found by Mills at Mofflin Road after the arrest of Wagner.
The Crown sought to link the accused with Lane’s death by reason of their possession of property belonging to Lane or associated with him. A sports bag belonging to Lane and a micro-cassette from Lane’s answering machine were found at Bundarra Court. A number of documents connected with Lane were found in the ceiling of those premises. A car ramp belonging to Lane was found in the U-Store-It unit rented by Bunting.
In the Ford Marquis at Mofflin Road police found a number of documents related to Lane, together with a pensioner concession card and a Target card in Lane’s name. Both cards contained genuine signatures of Lane. A blanket identified by Mrs Lane as belonging to Lane was found in Haydon’s Toyota Landcruiser (“Landcruiser”).
Thomas Trevilyan - (Count 7)
Trevilyan’s body was found on 5 November 1997 hanging from a tree in a remote locality in the Kersbrook area. A damaged and empty milk carton crate was nearby. No means of transport was present. The cause of death was attributed to the hanging. The pathologist found no evidence to suggest that a second person was involved in the death. At that time the authorities treated the death as a suicide.
Counsel for Bunting indicated that the question whether Trevilyan was murdered or committed suicide is a live issue in the trial. In addition to the absence of any evidence to suggest the involvement of a second person, counsel pointed out evidence suggesting that Trevilyan was prone to unusual behaviour and had experienced some psychiatric difficulties. He always wore army fatigues and it was not uncommon for him to hike long distances on foot without warning.
Lane and Trevilyan occupied the same premises from about April 1997 until Trevilyan moved to Mofflin Road in October 1997. Mills says that Wagner told her that Trevilyan had come from Lane’s place and needed somewhere to stay. Mills describes Trevilyan as “crazy”. She said every time there was a noise he would bolt outside with a carving knife. Initially she and Trevilyan were able to talk, but later he became “strange” and she could not understand him. He would chop and change subjects. He was always going for walks on his own. Trevilyan told Mills that he was supposed to be on medication, but was not taking anything while he was living at her premises.
Mills had three young children from previous relationships. No difficulties arose with Trevilyan until 4 November 1997 when he threatened to kill a puppy that one of the children was holding. Trevilyan chased the child with a knife in his hand. He was threatening to cut the dog’s throat. The child ran around a car to keep away from Trevilyan. Mills was screaming at him to stop. A passer‑by took the dog and the incident came to a halt. Trevilyan put the knife away and left the premises on foot.
The timing of the incident with the knife on 4 November 1997 is not clear. At 10.46 am, the Centrelink office at Elizabeth issued a card which enabled access to Trevilyan’s account. The type of card issued required that the entire content of the account be withdrawn by use of the card. At 10.58 am Trevilyan withdrew $280 from his bank account leaving a nil balance.
Wagner was not present on 4 November 1997 at the time of the incident with the knife. When he and Bunting subsequently came to the house, Mills told them what had happened. According to Mills, that evening Bunting and Wagner took Trevilyan for a drive. Mills did not see Trevilyan again. Later that night when Wagner returned home he attempted unsuccessfully to contact Bunting on the telephone. Wagner told Mills that they had dropped Trevilyan off at Gawler. On 5 November 1997 the body was discovered and Mills received a telephone call from the police advising her that Trevilyan was dead. Wagner appeared stunned at the news. On 6 November 1997 Wagner told Detective Bell that he last saw Trevilyan on 4 November when Trevilyan left Wagner’s premises after being asked to leave. He did not mention taking Trevilyan for a drive.
Vlassakis says that Bunting told him that Trevilyan had started to “fuck up” and “go mental”. Bunting said Trevilyan had a big mouth and would tell people about Lane. He said that he and Wagner had hung Trevilyan out of a tree. Trevilyan was made to stand on something and it was kicked out from under him. Bunting told Vlassakis that it was easy to make the death look like a suicide by leaving money in the deceased’s pocket. Wagner was present for one or two such conversations about Trevilyan.

According to Vlassakis, Bunting pointed out the location of the hanging. Subsequently, Vlassakis was able to indicate the general area to the police from a position 80 metres from the tree.
As mentioned, Vlassakis says Bunting told him that Trevilyan was involved in the murder of Lane. It is in that context that the Crown submitted the statement by Bunting to Vlassakis that Trevilyan had started to “fuck up” and “go mental” must be assessed. In addition, the Crown sought to rely upon evidence that shortly before his death Trevilyan spoke of being involved in the murder.
On 30 October 1997 Trevilyan confided in his cousin, Lenore Penner. She made an entry in her diary that evening. Trevilyan gave enough details to Penner to support a conclusion that Trevilyan possessed knowledge of the murder of Lane. The Crown argued that possession by Trevilyan of such knowledge is relevant to whether Trevilyan’s death was suicide or murder. His knowledge bears upon the question of a motive to kill him. The Crown also argued that Trevilyan’s knowledge and his state of mind are relevant to the state of the relationship between Trevilyan and the accused Bunting and Wagner.
According to Vlassakis, Haydon has never been mentioned in connection with Trevilyan’s murder. Vlassakis cannot remember any direct conversation that would have made Haydon aware of the murder.
The death having been made to look like a suicide, on the Crown case there was no occasion for attempting to benefit from the use of Trevilyan’s property or by gaining access to his Centrelink entitlements. The only item of property connected to Trevilyan that was subsequently located was a Scottish hat found in a green garbage bag in the ceiling at Bundarra Court.
Gavin Porter - (Count 8)
Porter was last seen alive in April 1998. His body was found in a barrel in the vault. The condition of the body prevented a determination as to the cause of death.
Porter and Vlassakis were friends. Both used heroin. At the time of his murder, Porter was living with Vlassakis, Bunting and Harvey at Burdekin Avenue.
The murder of Porter came as a surprise to Vlassakis. Neither Bunting nor Wagner had previously expressed any desire to kill Porter. Vlassakis did not pick up any “vibes” that Porter was a target. After Porter’s murder, Bunting and Wagner expressed concern about Porter’s drug use and referred to him as “waste”. Porter was open about the absence of relatives. After the murder, Bunting told Vlassakis that “it fell into our laps” and he would be set for life with income.
Vlassakis says that at the time Porter was murdered he had been told about previous murders but he had not seen a body or a barrel containing a body. He says that he was told of the circumstances of the murder of Porter by Bunting. Wagner also spoke about it.
On the night of the murder, Vlassakis went to the Murray Bridge Drive-In theatre. On his return to Burdekin Avenue, he was told that Porter had been murdered by Bunting and Wagner while Vlassakis was at the Drive-In. Vlassakis says that when he returned to Burdekin Avenue, Porter’s motor vehicle was at the premises. Bunting and Wagner were inside. Bunting showed Vlassakis the body of Porter in the shed. Vlassakis saw a large purple mark around the deceased’s neck. He was told that Wagner had a rope around the deceased’s neck, but the deceased lashed out in self‑defence and stabbed Bunting in the hand. Bunting said that he then jumped onto the deceased and pushed all the air out of his chest.
It is the Crown case that at the time Porter’s body was placed in the shed, the barrel containing the bodies of Gardiner and Lane was in the shed. Vlassakis recalls seeing the barrel in the shed a couple of times. He is uncertain whether Bunting opened that barrel on the night that Vlassakis saw the body of Porter in the shed. He says he was told by Bunting that the barrel contained the bodies of Gardiner and Lane.
Vlassakis says that within a couple of days of the murder, Bunting arrived at the premises with a barrel in the back seat of the Marquis. They took the barrel into the shed. Bunting uncovered the body of Porter and items were moved in the shed to make extra room. With the assistance of Vlassakis, Bunting put the body of Porter into the barrel. Bunting placed a lid on the barrel. The barrel containing the body of Porter was next to the first barrel. Vlassakis says that Bunting took the lid off the first barrel and made a comment to the effect that “they’re rotting very nicely”.
According to Vlassakis, he was told to drive Porter’s car to Adelaide. Property belonging to Porter was put in the vehicle. Vlassakis drove the vehicle by himself and Wagner followed in another vehicle. On the way to Mofflin Road they stopped at Birdwood because Wagner said he was short on petrol. They waited at Birdwood until they could obtain petrol early the following morning. They then drove to Mofflin Road where Wagner removed property from Porter’s vehicle. Mills was at Mofflin Road and an argument occurred between her and Wagner about who owned the vehicle. Mills recognised the vehicle as belonging to Porter.
Vlassakis says that shortly after he and Wagner arrived at Mofflin Road, Bunting arrived. Bunting spoke to Mills and the argument ceased. Vlassakis drove Bunting back to Murray Bridge. During the trip Bunting spoke about what had happened to Porter, but Vlassakis is unable to remember what details were given to him. Vlassakis says that in subsequent conversations when Bunting would refer to earlier murders, Bunting always said that the murder of Porter was a “funny one”. He spoke about the positioning of the rope around Porter’s neck and of talking to Porter about moving his head because the rope was caught up.
Following the murder of Porter, a number of false stories were told about Porter’s whereabouts. The stories were mainly told by Vlassakis. Again, they were designed to create the impression that Porter was alive.
According to Vlassakis, documentation belonging to Porter was collected up by Bunting. A page from a book containing personal details relating to Porter written in Bunting’s handwriting was found in the ceiling at Bundarra Court.
After the murder of Porter, at the instigation of Bunting a fraud was perpetrated against Centrelink in respect of Porter’s benefits. Vlassakis and Bunting were involved in impersonating Porter and another deceased, Brooks. Those impersonations occurred on 23 September 1998, some months after the death of Porter. Haydon was not involved in the impersonations or in setting up the access to Porter’s benefits.
The use of Porter’s card to access his benefits commenced in April 1998. According to Vlassakis, prior to Porter’s death he and Porter used each other’s keycards to access their accounts. After Porter’s death, Bunting gave Porter’s keycard to Vlassakis and said he could access Porter’s benefits. He had it only a few weeks. It was cut off and he gave the card back to Bunting.
Vlassakis says that in 1999 when he moved back to Bundarra Court, he discovered that Porter’s keycard was still operating and that Haydon had the card. He did not see Haydon use the card. However, Haydon told him that he had the card. After the subsequent murder of Brooks, the benefits of Brooks were paid into Porter’s account. Haydon told Vlassakis that he had to use Porter’s card to access the Centrelink benefits of Brooks.
As mentioned, when Vlassakis arrived at Mofflin Road in Porter’s vehicle, Mills recognised the vehicle. Subsequently, Wagner admitted to Mills that the vehicle belonged to Porter. He said that he was paying fifty dollars per fortnight for the vehicle. He claimed Bunting was putting the money into Porter’s account. That vehicle was registered in the name of Mills on 4 April 1998. It was found by police at Mofflin Road. The property of more than one deceased was found in that vehicle.
Property belonging to Porter or connected to the obtaining of Porter’s benefits was found in the Ford Marquis at Mofflin Road and at Bundarra Court. A book in which Bunting had written Porter’s PIN number and his family details was found in the ceiling at Bundarra Court.
The premises occupied by Haydon at Blackham Crescent were also linked to Porter. Two Centrelink letters post‑dating Porter’s death were found in the shed. Haydon’s fingerprints were found on those documents. A Centrelink concession card in the name of Porter was found in a pit in the shed. In the main bedroom of the premises police found two ATM account inquiry receipts from Porter’s bank account dated after Porter’s death. A Centrelink letter written after Porter’s death was also found in Haydon’s Landcruiser.
Vlassakis says Porter’s Christian name, Gavin, was one of the names listed by Bunting to Youde in the presence of Haydon shortly before Youde was murdered.
Counsel for Haydon referred to evidence suggesting that Haydon had little contact with Bunting at the time of Porter’s murder. Vlassakis says that when he first met Bunting, Haydon and Bunting were together all the time. However, after Haydon started going out with Elizabeth Haydon and married her (24 February 1996), the relationship between Bunting and Haydon seemed to “fall apart”. This was about the time Wagner moved from Lane’s house and Bunting and Wagner formed a close relationship. Vlassakis says that when he moved into Burdekin Avenue in about January or February 1998, Haydon was not associating with Bunting and Wagner. Their relationship seemed to resume in mid‑1998 when Haydon moved from Catalina Road to Blackham Crescent.
Brown says that from about January to April 1994, Bunting and Haydon were constant companions. In October 1995 Bunting advised Centrelink that he had moved to Catalina Road, the address at which Haydon was residing. As mentioned, Davies’ caravan was taken to Catalina Road and remained there until it was sold in January 1996.
Haydon and Elizabeth Haydon were married on 24 February 1996. There is no positive evidence that a close relationship existed between Bunting and Haydon from the time of the marriage until June 1998. During this period, Bunting and Harvey lived at Bakara until November 1996 when they moved to Lohmann Street, Murray Bridge. A statement by Harvey made in May 1999 suggests that for a period of two and a half to three years before May 1999 Bunting and Harvey had not associated with Haydon as a consequence of a fall out between the families. The murders of Allen, Gardiner, Lane, Trevilyan and Porter occurred from November 1996 to April 1998. In respect of those deaths, other than by reasoning that Haydon was part of a joint enterprise that encompassed these killings, there is no evidence to connect Haydon to the killings nor to events immediately before and immediately after those killings.
Evidence of the existence of a relationship in mid‑1998 is provided by Elliott. As mentioned, Haydon and Elizabeth Haydon moved to Blackham Crescent in June 1998. Elliott moved from Queensland to South Australia in 1998. She says that shortly before the move she, Bunting, Haydon and Elizabeth Haydon travelled to Queensland together to obtain property belonging to Elliott.
Troy Youde - (Count 9)
Youde was last seen alive in August 1998. Dismembered parts of his body were found in two barrels in the bank vault. Defleshing had occurred. Fractures to the throat structures identified strangulation as the cause of death.
Vlassakis admits to being an eye witness to the murder of Youde. He had told Bunting on many occasions that Youde had raped him when he was younger. Haydon was not present during these conversations. Vlassakis says Bunting was angry about Youde’s behaviour and had often said that he wanted to bash Youde and give him a flogging. However, there was no plan to murder Youde nor any talk of murdering him in advance of the occasion in question. Vlassakis did not think that Bunting would murder Youde because Youde was the brother of Vlassakis and Bunting was in a longstanding relationship with their mother (Harvey).
According to Vlassakis, the events leading to the murder of Youde occurred without warning. Vlassakis was asleep in the lounge room at Burdekin Avenue. He was woken up and given a club and a pair of handcuffs. Bunting, Wagner and Haydon were each armed with a jack handle. Vlassakis says he was taken down to the bedroom where Youde was asleep. The four men walked into the bedroom and Bunting said “Now”. Vlassakis describes the four men as “swinging into Troy”. Youde awoke and jumped onto the bed with his back to the wall. Bunting and Wagner “just flew in”.
Vlassakis says that Bunting demanded that he put the handcuffs on Youde. He put one handcuff on and then walked out of the bedroom into the lounge. It appears that Haydon also left the bedroom. Vlassakis became aware that Bunting and Wagner were putting Youde into the bath tub. Vlassakis and Haydon entered the bathroom. At that time Vlassakis still believed that Youde was to be bashed.
After more physical and verbal abuse of Youde by Bunting, Vlassakis left the bathroom. Haydon was already in the lounge. Vlassakis says that he couldn’t handle it and he thought that Haydon was unable to handle it. He could hear the physical abuse of Youde continuing.
Vlassakis says that he witnessed torture of Youde conducted by Wagner. A tape recorder was produced and Youde was made to make abusive statements directed at his mother and others. Bunting would say the words and have Youde repeat the words for taping purposes. A PIN number was obtained. Youde was made to refer to those present by deferential titles such as “sir”.
Bunting encouraged Vlassakis to take advantage of the circumstances and make Youde apologise for what he had done to Vlassakis. According to Vlassakis, he knelt in front of Youde and spoke to him. Youde apologised.
At the direction of Bunting, Vlassakis obtained a bag from the lounge room which contained items such as duct tape and gloves. A sock or similar item was placed in Youde’s mouth and tape was applied to hold the gag in place. More physical violence was applied to Youde.
Vlassakis says he felt very emotional because initially he was thinking that Youde was to receive only a beating and then he realised that Youde was about to be murdered. At a time when Vlassakis and Haydon were not in the bathroom, Bunting said they “had to see this”. They moved to the bathroom. Vlassakis entered the bathroom. It appears that Haydon was watching from outside the bathroom.
According to Vlassakis, a rope was put around Youde’s neck and a jack handle was inserted into the rope as a twisting mechanism. Vlassakis knew Youde was going to die and he wanted it to happen quickly. He assisted in the twisting, but the rope broke. Wagner retied the rope and completed the strangling.
As mentioned, Vlassakis says that during the abuse and torture of Youde, Bunting knelt in front of Youde and named people he had killed. Bunting mentioned names and then asked Haydon if he had left any out. Haydon repeated a couple of names immediately before the strangling commenced. Vlassakis says Haydon just repeated the names Bunting had already nominated.
Specifically as to the involvement of Haydon, Vlassakis says that Haydon assisted in the initial beating of Youde in the bedroom, but did not provide any subsequent assistance. He is unable to remember Haydon being present during the torture. At the time that Vlassakis obtained the bag containing the tape, Haydon was in the lounge. Haydon was present when the tape was applied. After Bunting had summoned both Vlassakis and Haydon to the bathroom at the time the rope was placed around Youde’s neck, and during the strangling, Haydon was looking through the doorway to the bathroom. He did not assist in any manner.
According to Vlassakis, after Youde was killed Bunting asked him to go to a shop and purchase surgical gloves and garbage bags. Either Vlassakis or Haydon asked what sort of garbage bags and Bunting responded “heavy ones, heavy-duty ones”. Bunting showed Vlassakis an almost empty box of surgical gloves of the type that he wanted purchased. Vlassakis and Haydon drove in Haydon’s Landcruiser to Woolworths at Murray Bridge where they purchased the box of gloves and heavy-duty plastic bags.
On their return to Burdekin Avenue, Bunting let Vlassakis and Haydon into the premises. They went to the bathroom. The body of Youde was on the floor. Bunting told Wagner to check if Youde was dead. Wagner put his foot on the deceased’s chest and pushed a number of times. Bunting and Wagner laughed. The deceased was still handcuffed.
Bunting and Wagner put rubbish bags over the body. Rope was put around the deceased’s legs. A barbell was used to assist in carrying the body. All four men carried the body into the shed. Bunting was laughing and saying that Youde was “happy now” and that he had been “made good”.
Vlassakis says that after the body was put in the shed, Vlassakis left the premises to obtain methadone from a pharmacy. He was absent from the premises for approximately ten minutes. After he returned to the premises, a discussion occurred about what had happened. Bunting and Wagner were having a “big laugh”. Haydon had “a bit of a laugh”. Vlassakis was feeling shocked, but did not wish to show his feelings. Bunting asked how Vlassakis felt because he had just committed murder. There was talk of Youde going too quickly and not experiencing enough pain. Eventually Bunting said he was hungry and all four men travelled in Haydon’s vehicle to MacDonald’s. Vlassakis was unable to eat.
According to Vlassakis, he and Bunting cleaned up in the bedroom and bathroom. Bunting put clothes and other items in a garbage bag together with Youde’s bankcard. That bag was put into Haydon’s Landcruiser. Subsequently Haydon and Wagner left the premises in the Landcruiser. Although Vlassakis and Bunting had cleaned up in the bedroom and bathroom, Bunting had put some of Youde’s CD’s in the fish tank and messed up the lounge room a bit to make it look like a fight had occurred. When Harvey returned home, Bunting told her that a fight had occurred between Vlassakis and Youde and that Bunting had stepped in. He said the argument continued between him and Youde and that Youde had left the premises.
Vlassakis says that within a day or so he and Bunting drove to Adelaide in the Ford Marquis and purchased a barrel. On their return to Burdekin Avenue, Bunting and Vlassakis put the barrel in the shed and Bunting locked the door behind them. They put Youde’s body into the barrel, but the legs were sticking out of the barrel. Bunting told Vlassakis he would have to do a “slice and dice”. Using a knife, Bunting cut around an ankle joint and detached the deceased’s foot. The foot was put into the barrel. After the lid of the barrel was applied, the barrel was moved to where two other barrels were situated in the shed. Vlassakis understood that one barrel contained the bodies of Lane and Gardiner and the second contained the body of Porter. The barrel containing the body of Youde was shorter than the other two barrels.
According to Vlassakis, while in the shed Bunting lifted the lid of the barrel containing the body of Porter. He looked into the barrel and said that the body was “rotting very nicely”. He asked Vlassakis about the smell. Bunting also looked into the barrel containing the bodies of Lane and Gardiner and again asked about the smell. Vlassakis describes the smell as very powerful and potent. He told Bunting it was pretty bad.
Subsequently, Vlassakis gave false stories to a number of persons concerning the disappearance of Youde. The stories were designed to create the impression that Youde was still alive.
Vlassakis says that Bunting gave him a card which enabled access to Youde’s bank account. He had the card for approximately three to four months before Bunting wanted it back. Vlassakis was told to use the card only at EFTPOS machines and not at the bank. The record of withdrawals demonstrates regular use of the card from September 1998 to March 1999. Vlassakis says he gave money to Bunting if Bunting needed it.

In August 2001, without reference to Nieterink, Palaga or Conway, in R v Chevathen (2001) 122 A Crim R 441 the Court of Appeal in Queensland took the same view of Pfennig. The appellants had been convicted of the murder of a four year old child. Evidence of prior violence against the child by both appellants was admitted. On appeal it was argued that since Hoch and Pfennig all evidence which reveals criminal propensity is inadmissible unless there is no rational view of it consistent with the innocence of the accused. After observing that the submission was premised on the assumption that relationship evidence is regarded as a species of propensity evidence, the Court said (449):
“We do not think that that is a correct statement of the law. The question was addressed by McHugh J in KRM. Plainly, ‘relationship evidence’, which is an incidental form of propensity evidence, remains admissible although it could never meet the test which is, according to the submission, necessary before it could be admitted. Some latent ambiguities in Pfennig, particularly in relation to the term “the evidence” were referred to by this court in O’Keefe. At least some of the references in Pfennig to ‘the evidence’ are references to the evidence as a whole. There is no doubt that such a test is binding and appropriate with respect to similar facts evidence and to evidence tendered for the purpose of proving propensity. But it would in our respectful view be absurd to apply the same test to evidence which is admitted for other purposes, usually subsidiary but nonetheless valid purposes, which can never satisfy so rigorous a test.” (footnotes omitted)
I am bound by the decisions of the South Australian Court of Criminal Appeal in Nieterink and Palaga. I also agree with those decisions and with the approach taken in Conway and Chevathen. If the Crown seeks to lead evidence from which the jury will be asked to infer that an accused had a propensity to commit the crime of murder, the test of admissibility is that identified in Pfennig. However, if the evidence of the commission of a crime or crimes of murder is relevant for some other purpose, the Pfennig test does not apply.
The precise use which the jury can properly make of circumstances relating to one murder in connection with another murder cannot be finally determined until all the evidence has been given and the essential issues have been identified. Speaking broadly, I am satisfied that the circumstances relating to each murder are cross-admissible in respect of one or more other murders for some or all of the purposes identified by the Crown and outlined earlier in these reasons [350] under heads of admissibility numbered (2)-(7). Not all counts are cross-admissible on the same basis. For example, the circumstances relating to the murder of Trezise are relevant to later offences because they identify the beginning of the relevant relationship and the facts of Trezise are directly relevant to the murder of Lane. The name “Happy Pants” (Trezise) was also one of the names listed by Bunting to Youde shortly before the murder of Youde. However, the facts of the offences subsequent to the murder of Trezise do not appear to bear upon the principal issues to be determined in connection with Trezise. The murder of Lane is directly relevant to the issue of motive to murder Trevilyan, but the facts associated with Trevilyan do not appear to be relevant on any other count.
These are only examples of how different counts may be cross-admissible for different purposes. Across all counts is the nature of the relationship between the accused and the relationship between Vlassakis and the accused.
In my opinion, given the nature of the case and the evidence to be led in support of the Crown assertions, it would be artificial and potentially misleading to sever any count. This is a matter in which it is necessary for the jury to hear the full story of all the events over a period of years. To apply a phrase that has been used in the context of similar fact evidence, it would be “an affront to common sense” to sever the counts and thereby to present the jury with a fragmented and distorted picture.
The Crown also sought to justify cross‑admissibility of most counts on the basis of the improbability line of reasoning identified earlier under head of admissibility numbered (1). In particular, with respect to the death of Allen, the Crown submitted that the improbability line of reasoning excludes as a reasonable hypothesis the possibility that Allen died of natural causes. The Crown referred to the following circumstances:
·Allen’s body was found buried in the backyard of Waterloo Corner Road with the body of Davies, but above the body of Davies.
·The dismembered parts of the body were found in garbage bags. At least one other body was temporarily stored in garbage bags.
·Rope was found in two of the bags containing parts of Allen’s body. Ropes were found around the necks of the bodies of Gardiner, Lane, Trevilyan, Youde and Elizabeth Haydon. Vlassakis says that Bunting admitted that Porter and Johnson were strangled with rope.
·Allen’s body had been dismembered. The bodies of other deceased had been dismembered or mutilated.
·Immediately after Allen’s death, property was collected from her house including paperwork and her car. A similar pattern was followed in respect of other deceased.
·A loose page in a book containing the writing of Gardiner was found in the ceiling at Bundarra Court. That page contained the personal details of Allen in the handwriting of Bunting. Like pieces of paper were found in connection with Porter, O’Dwyer, Brooks and Johnson. Vlassakis says that personal details were extracted from victims of murders for the purposes of accessing the accounts and benefits of the victims. After the death of Allen, Bunting arranged for Harvey and Elliott to impersonate Allen in order to convince authorities that she was alive. False stories were told to convey the impression that Allen was alive. Bunting accessed the benefits of Allen from late 1996 through to 1999. The benefits of other deceased were accessed. False stories were told about other deceased being alive.
Against that background, the Crown submitted that a jury would be entitled to reason that it is inherently improbable that Allen died of natural causes when, in the same or similar circumstances, the accused murdered other persons. That line of reasoning presupposes that the jury is first satisfied that Bunting and Wagner committed other murders which were accompanied by the relevant features. It was argued that such an underlying unity exists between Allen’s death and the proven murders that it excludes as a reasonable hypothesis death by natural causes. I am inclined to agree with the Crown submission.
The Crown also submitted that the same line of reasoning is applicable to the death of Trevilyan for the purpose of rebutting the hypothesis of suicide. However, the death of Trevilyan was not accompanied by features which establish an underlying unity between that death and other proven murders. In these circumstances, in my view the improbability line of reasoning is inapplicable in respect of the death of Trevilyan. However, for the reasons I have given, I am satisfied that other aspects of cross-admissibility exist and that it would be inappropriate to sever the trial of the count relating to Trevilyan.
During the course of submissions concerning severance, and particularly in connection with the counts relating to Allen and Trevilyan, discussion occurred as to the possibility that the Crown would be asking the jury to reason from the commission of a number of crimes of murder that Bunting and Wagner were in the business of killing people. Features such as possession of property and accessing of Centrelink benefits were features associated with that business. In other words, the accused had a propensity to kill in particular circumstances and the existence of those circumstances in connection with the death of a particular deceased is probative of the fact of murder and of the identity of the accused as the offenders.
As presently advised, I am minded to the view that cross‑admissibility is also justified on the basis of propensity reasoning, at least in respect of Allen. However, it is unnecessary for me to finally determine this issue at this stage of the trial. Cross‑admissibility exists on grounds other than proof of propensity to murder.
In these circumstances I reached the view that all counts against Bunting and Wagner should be tried in a single trial. In arriving at this conclusion, I have not overlooked the points made by counsel for Bunting about the length and complexity of a single trial and the difficulties thereby created. It is unnecessary to explore the power of the Court to direct that the Crown proceed on a reduced number of counts in order to ensure a manageable and fair trial. The Court possesses all the powers necessary to ensure that the trial is fair. I am satisfied that the length and complexity of a single trial of Bunting and Wagner on all counts will not be such as to place in jeopardy the right of either accused to a fair trial. I do not underestimate the difficulties associated with a single trial, particularly in view of the nature of the evidence to be led, but in my opinion the length and complexity is not such that there is a risk that a jury will be unable or unwilling to apply the directions and to give appropriate and impartial consideration to the evidence.
Haydon – Separation from Bunting and Wagner
Counsel for Haydon submitted that the trial of Haydon with respect to the deaths of Youde and Elizabeth Haydon should be separated from the trial of Bunting and Wagner. In essence, she contended that the volume and nature of the evidence relating to Bunting and Wagner would be such as to make a fair trial for Haydon impossible. The Crown argued, however, that as Haydon is jointly charged with Bunting and Wagner with the murders of Youde and Elizabeth Haydon, it is appropriate that he be tried with those accused. The Crown submitted that there is no basis for doubting that a jury would be able to isolate the evidence admissible against Haydon and to put aside the inadmissible material.
The Crown initially submitted that the counts against Haydon concerning the deaths of Youde and Elizabeth Haydon are cross‑admissible against each other. After further discussion, however, in essence the Crown conceded that the Elizabeth Haydon count was not admissible in respect of Youde. The Crown maintained that the knowledge gained by Haydon from his presence at the murder of Youde is admissible in respect of Elizabeth Haydon. The Crown also argued that much of the evidence to be led in the trial of Bunting and Wagner would be admissible against Haydon in respect of the counts relating to Youde and Elizabeth Haydon. In these circumstances, the Crown urged that it is inappropriate to direct that Haydon be tried separately from Bunting and Wagner.
In the remarks that follow I have endeavoured to identify, in general terms, the categories of evidence that the Crown argued would be relevant on the trial of Haydon with respect to the murders of Youde and Elizabeth Haydon. I have also endeavoured to identify the basis of relevance advanced by the Crown.
The murder of Trezise is linked to the murders of Youde and Elizabeth Haydon. Vlassakis says that the murder of “Happy Pants” (Trezise) was one of the murders nominated by Bunting when he listed the names of a number of victims to Youde during the torture of Youde. Names of other deceased were also mentioned. Haydon repeated some of the names. The Crown submitted that Haydon’s conduct demonstrates that he was aware that Bunting had murdered the nominated victims.
A connection between Trezise and Elizabeth Haydon is found in the evidence of Vlassakis that he overheard Haydon telling Bunting that he, Haydon, had told Elizabeth Haydon of that murder. That statement by Haydon demonstrates a knowledge on his part of the murder of Trezise. In addition, it is capable of providing a basis for an inference as to motive to kill Elizabeth Haydon.
The Crown also sought to establish that, prior to the murder of Youde, Haydon had knowledge that Bunting and Wagner had murdered Lane. Vlassakis says that Haydon was present for conversations about Lane’s murder. He recalls a conversation when Bunting and Wagner told Vlassakis and Haydon about wrapping Lane’s body in a carpet. The timing of this conversation is unclear. Lane’s Christian name was one of those mentioned by Bunting to Youde shortly before the murder of Youde.
Counsel for Haydon submitted that the evidence is incapable of establishing that at the time of the murder of Youde, Haydon had knowledge that Bunting and Wagner had committed any murder other than that of Trezise. In particular, counsel argued that the positive statements by Vlassakis that Haydon had no knowledge of a number of murders cannot be displaced by the general statements of Vlassakis that Haydon was present at conversations when murders were discussed.
As I have said, the timing of the conversation about wrapping Lane’s body in a carpet is uncertain. However, Vlassakis also says that Bunting used to brag about different murders “all the time” in front of Vlassakis, Wagner and Haydon. In addition, according to Vlassakis, the Christian names of Davies, Gardiner and Porter were listed by Haydon to Youde at the same time as the mention of Happy Pants and Lane.
In my opinion, on a provisional assessment of the evidence to be led, the evidence is capable of supporting an inference that, at the time of the murder of Youde, Haydon had knowledge that Bunting had murdered Trezise and other persons and that Wagner had been involved with Bunting in murders. The involvement of Haydon soon after the murder of Youde in the storage of bodies and in the subsequent movement of bodies, when considered in conjunction with the other evidence, is also capable of tending to confirm this view.
On the assumption that the evidence is capable of supporting a finding that, at the time of the murder of Youde, Haydon was aware that Bunting and Wagner had committed one or more murders, counsel for Haydon submitted that such knowledge is not admissible upon charges of murdering Youde and Elizabeth Haydon. I do not agree.
As to Youde, Vlassakis says that Haydon participated in the initial violence against Youde, but was a spectator during the torture and murder. Haydon’s knowledge bears directly upon his state of mind at the time of the beating, torture and murder of Youde. At the least, Haydon’s knowledge is relevant to whether, at the time he assisted in beating Youde, Haydon contemplated the possibility that Bunting and Wagner would kill Youde.
As to the murder of Elizabeth Haydon, if a finding is made that Elizabeth Haydon was murdered during the absence of Haydon and Elliott, the critical issue is whether Haydon was a party to removing Elliott from the premises for the purpose of enabling Bunting and Wagner to kill Elizabeth Haydon in Elliott’s absence. The Crown submitted that the false statement by Haydon later that evening to Elliott that Elizabeth Haydon was at the premises is, in the circumstances, probative of Haydon’s complicity as are false stories subsequently given by Haydon to the police and other persons.
In my view, Haydon’s knowledge that he had left Elizabeth Haydon in the company of persons who had murdered Youde, Trezise and others, places in proper context the false statements made by Haydon to Elliott and other persons. In the circumstances, false statements made in ignorance of prior murders committed by Bunting and Wagner would bear a significantly different complexion from false statements made with knowledge of prior murders. A jury would be entitled to reason that, possessing knowledge of prior murders by Bunting and Wagner, Haydon’s conduct in immediately telling a false story to Elliott about the presence of Elizabeth Haydon is inconsistent with the view that he was not party to a plan to kill Elizabeth Haydon but merely discovered her absence on his return home with Elliott. A jury could conclude that Haydon’s knowledge excludes the possibility that Haydon decided to tell a false story about the presence of Elizabeth Haydon for some reason other than complicity in her murder.
The Crown pointed to an additional relevance attaching to Haydon’s knowledge of prior murders. The Crown contended that the nature of the relationship between Haydon and Bunting is of particular significance. The relationship was such that Haydon was trusted with knowledge of murders. Knowledge of the nature of the relationship is necessary to place the events with respect to Youde in their proper context. That relationship explains what otherwise might appear to be unlikely, namely, that Bunting would beat, torture and murder Youde in the presence of Haydon. Similarly, the nature of the relationship is relevant to whether Bunting and Wagner would be likely to kill Elizabeth Haydon during the temporary absence of Haydon from the premises if Haydon was not party to that murder.
In my opinion, the relationship between Haydon and Bunting is relevant for the reasons advanced by the Crown. Haydon’s knowledge of prior murders bears directly upon that relationship.
The issues to which evidence of Haydon’s knowledge of prior murders are addressed are not peripheral issues. The evidence is highly probative with respect to issues which are highly probative of the ultimate fact in issue, namely, whether Haydon was implicated in the murders of Youde and Elizabeth Haydon. Leaving aside knowledge gained from presence at the murder of Youde, the evidence of knowledge of murders comprises statements made in the presence of Haydon coupled with his conduct in both accessing the benefits of Porter and assisting in the storage and movement of bodies. That evidence is prejudicial to Haydon. However, in my opinion the evidence is highly probative on each count. As presently advised, I would not exclude that evidence in the exercise of my discretion.
Haydon’s presence at the murder of Youde raises additional considerations. In my opinion, the evidence of Haydon’s presence at that murder or implication in it is not admissible on the charge of murdering Elizabeth Haydon for the purpose of proving that Haydon was or was likely to be involved in the murder of Elizabeth Haydon. Such a use would involve propensity reasoning in circumstances where such reasoning lacks the required degree of probative value. Haydon’s presence at Youde’s murder is admissible only for the purpose of demonstrating that, from first-hand experience, Haydon gained knowledge that Bunting and Wagner were willing to engage in beating, torture and murder. Knowledge from such firsthand experience is highly probative, but the evidence carries with it the potential for prejudice by reason of the risk of impermissible reasoning by propensity.
On a joint trial with the other accused, all the evidence would be led. Strong directions would be required as to the proper use of the evidence. If Haydon is granted a trial separate from the trial of Bunting and Wagner, should an application be made these considerations would be relevant to whether the charges with respect to Youde and Elizabeth Haydon should be severed from each other. For reasons which will become apparent, it is unnecessary for me to decide this issue.
The Crown submitted that even if Haydon is granted a separate trial, a considerable quantity of evidence that would be led on a joint trial will be admissible on the separate trial. For example, the Crown referred to evidence concerning Haydon’s presence at discussions of murders and during anti‑paedophile conversations, together with evidence of his attitude to homosexuals and paedophiles. Similarly, evidence concerning his conduct after the murders of Youde and Haydon would be admissible on a separate trial. By way of categories, the admissible conduct includes the following:
·Accessing the accounts of Porter and Brooks.
·Possession of property of any victim.
·Telling of false stories about victims and presence when false stories were told by others.
·Storage of bodies at Blackham Crescent.
·Removal of property, including bodies, from Blackham Crescent following police inquiries into the disappearance of Elizabeth Haydon.
·Connection to the bank premises including possession of keys to vault and handcuffs, renting the premises, attendances described by Vlassakis and forensic evidence.

The Crown submitted that these categories of evidence speak volumes as to the nature of the relationship between Haydon and Bunting and, for the reasons already discussed, the evidence is highly probative and admissible against Haydon. Some of the evidence is also relevant to motive.
These propositions are disputed by counsel for Haydon. Counsel also suggested that the Crown’s interpretation of the evidence is rebutted by other evidence and that much of the evidence is equivocal.
Counsel for Haydon did not dispute the proposition that the finding of the bodies of Youde and Elizabeth Haydon in barrels at the bank is admissible. However, at times her submissions carried the implication that other conduct of Haydon after the deaths was necessarily lacking in relevance because it occurred after the deaths. In my opinion, that suggestion is not supported in principle or in logic. Speaking generally, if evidence of conduct after the commission of a crime possesses the necessary probative value, subject to any exclusionary rule such evidence is admissible. The purpose for which it is sought to lead the evidence must be assessed in the context of the totality of the evidence and the live issues at trial. There is no difference in principle between conduct occurring before or after the crime.
Some of the evidence which the Crown would seek to lead against Haydon discloses discreditable conduct and the commission of other offences. The Crown does not seek to lead this evidence as evidence of a propensity to commit murder or any other crime, but as evidence relevant for other reasons. In those circumstances, as I have indicated earlier in these reasons, in my opinion the test enunciated by the High Court in Pfennig is not the appropriate test. However, for reasons that will become apparent, it is unnecessary for me to determine whether the categories or individual pieces of evidence are admissible against Haydon in respect of one or both of the counts of murder and, if admissible, whether there are grounds upon which the evidence should be excluded in the exercise of the discretion. On the assumption that the Crown would be entitled to lead all or most of the evidence to which I have referred, and assuming that the evidence concerning Haydon’s presence at the murder of Youde is admissible in respect of Elizabeth Haydon, it is apparent that virtually all of that evidence will be led in the trial of Bunting and Wagner.
Against that background, the Crown relied on the public policy considerations that weigh heavily in favour of a joint trial. As King CJ pointed out in R v Glover (1987) 46 SASR 310, generally speaking where accused persons are charged jointly with offences it is highly desirable in the interests of justice that they should be tried together. His Honour said (312):
“It is, generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together.”
King CJ repeated those remarks in R v Collie, Kranz and Lovegrove (1991) 56 SASR 302 at 309. His Honour also cited the following passage from R v Demirok [1976] VR 244 at 254:
“The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.”
The Crown properly highlighted the inconvenience and trauma to witnesses. Some of the witnesses were closely associated with the accused. This matter has attracted exceptional publicity. In view of the estimated length of the trial with respect to Bunting and Wagner, it is unlikely that a separate trial of Haydon would occur until mid 2003 or later. Counsel suggested that a delay of that nature in the particular circumstances of this matter would give rise to a real risk to the Crown’s ability to continue to secure the co-operation of critical witnesses and to properly present its case.
As to public expense, counsel for Haydon suggested that a separate trial with respect to Haydon on both counts would probably take approximately four weeks. The Crown disputed this estimate. My assessment is that a trial involving Bunting and Wagner is likely to be significantly shorter and less complicated if Haydon is granted a separate trial. I also anticipate that a trial of Haydon on two counts would take a matter of weeks rather than months. Of course, if Haydon is granted a separate trial, it would be a matter for the future trial judge whether the two counts are heard together.
As King CJ recognised in Glover and Collie, there may be circumstances involved in the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative. This does not mean that the mere existence in a joint trial of material inadmissible against an accused and prejudicial to that accused necessarily justifies separate trials. The existence of such material is common in joint trials.
The capacity of a jury to understand and apply directions as to the use of evidence and as to permissible and impermissible lines of reasoning should not be underestimated. Experience and the limited research available demonstrate that juries take their responsibilities very seriously and readily appreciate the critical importance of not misusing evidence and of not engaging in impermissible lines of reasoning. However, the matter under consideration is quite exceptional in many respects. Just as the capacities of a jury should not be underestimated, nor should the difficulties that a jury would face in a joint trial of the three accused be underestimated.
Even if the Crown was permitted to lead all the evidence that the Crown argued is admissible against Haydon on two counts of murder, in a joint trial the jury would be faced with a large volume of evidence relating to ten other murders which would not be admissible against Haydon. That evidence includes gruesome details of some of the murders including torture, methods of killing and dismemberment of bodies. Notwithstanding that evidence in connection with Youde would involve evidence of torture and dismemberment, the impact of the volume of gruesome evidence not admissible against Haydon must be carefully considered.
The Crown will lead evidence against Bunting and Wagner designed to establish that they were in the business of killing and of reaping financial rewards from the murders. As I have indicated, I am tentatively of the view that the Crown will be entitled to invite the jury to reason by way of propensity to kill in respect of Bunting and Wagner. However, that line of reasoning is not available in the case against Haydon. The difficulty for a jury of isolating that line of reasoning and limiting it to Bunting and Wagner would be exacerbated by the fact that the jury would be invited to find that Haydon was trusted with knowledge of murders, was involved in committing two murders with Bunting and Wagner, was involved in the movement and storage of bodies and was involved in the activities at the bank. The difficulty of avoiding reasoning to guilt by association or propensity is obvious.
There is a further feature that is to be considered in conjunction with the matters to which I have referred. It concerns the evidence of Vlassakis. His evidence is critical in the case against Haydon with respect to the murder of Youde. Vlassakis has admitted committing four crimes of murder. He sought to use his co-operation with the authorities as a factor in mitigation of penalty. He has admitted knowledge of all murders and admitted engaging in numerous frauds and deceptions in respect of a number of deceased. The credit of Vlassakis is critical in the cases against all accused. An accomplice warning and corroboration directions will be necessary.
The evidence of Vlassakis implicating Bunting and Wagner in all of the murders is supported in a number of respects. It is unnecessary for present purposes to canvass the details of the support with respect to each count. Nor is it necessary to identify how much of that supporting evidence amounts to corroboration. It is sufficient to observe that there is a considerable volume of evidence which, if accepted, provides corroboration and general support for significant parts of the evidence that Vlassakis will give against Bunting and Wagner. In this context it is to be remembered that Vlassakis is giving evidence concerning twelve murders and associated events occurring over a period of approximately seven years.
By way of contrast, the evidence of Vlassakis against Haydon in respect of the murders of Youde and Elizabeth Haydon is in a much narrower compass. There is evidence capable of providing support for the evidence of Vlassakis against Haydon in respect of matters such as Haydon accessing the Centrelink benefits of Porter and Brooks and being involved in the movement and storage of bodies. However, in respect of the critical evidence of Vlassakis concerning the presence of Haydon at the time of the murder of Youde and as to Haydon’s involvement in the beating of Youde, there is no direct evidence independent of Vlassakis to support his version.
The Crown argued that the evidence independent of Vlassakis which supports his evidence with respect to Haydon accessing Centrelink benefits and being involved in the movement and storage of bodies amounts in law to corroboration of the evidence by Vlassakis that Haydon was present at the time of the murder and was involved in the beating of Youde. In other words, it is said by the Crown that the accessing of Centrelink benefits and involvement in the movement and storage of bodies are material facts implicating Haydon in the commission of the crime. Not surprisingly, counsel for Haydon argued that these facts are too removed from the critical questions for these purposes.
In Doney v The Queen (1990) 171 CLR 207, in a joint judgment the High Court said (211):
“The essence of corroborative evidence is that it ‘confirms’, ‘supports’ or ‘strengthens’ other evidence in the sense that it ‘renders [that] other evidence more probable’: R v Kilbourne, per Lord Simon of Glaisdale. It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it ‘shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused’: R v Baskerville.” (footnotes omitted)
After confirming that corroboration may be in the form of circumstantial evidence, their Honours said:
“It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice’s evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused’s involvement in the events as related by the accomplice: see Baskerville; R v Hester.” (footnotes omitted)
In my opinion, there is force in the Crown contention. However, it is pertinent to note that although Haydon accessed the benefits of Brooks, there is no evidence that he was involved in the murder of Brooks. Similarly, while on the Crown case Haydon was involved in the movement and storage of the bodies of the deceased, the evidence does not implicate him in the murder of six of those deceased.
Decisions as to whether evidence is capable of amounting to corroboration usually arise at the conclusion of the evidence. There are obvious difficulties in attempting to predict this far in advance whether the evidence identified by the Crown will amount to corroboration of evidence Vlassakis gives implicating Haydon in the murder of Youde. Notwithstanding corroboration of Vlassakis with respect to Haydon accessing Centrelink benefits and being involved in the movement and storage of bodies, the critical evidence of Vlassakis that Haydon was present at the murder of Youde stands alone. Even if the evidence of Vlassakis is corroborated in other respects, at the least it will be necessary for the jury to be given a strong warning that the evidence of Vlassakis should be approached with special caution.
In a joint trial, the credibility and reliability of Vlassakis would be of critical importance in the case against each accused. The jury would be required to consider the credibility of his evidence against Bunting and Wagner. For that purpose the jury would be entitled to take into account the considerable volume of evidence that supports the account that Vlassakis gives against Bunting and Wagner. However, the vast bulk of that supporting evidence is not admissible against Haydon. The evidence inadmissible against Haydon that supports the credibility of the version given by Vlassakis against Bunting and Wagner cannot be used to support the credibility of the evidence that Vlassakis gives against Haydon.
These circumstances give rise to a potential difficulty for a jury on a joint trial. If, based on evidence inadmissible against Haydon but supporting the account of Vlassakis against Bunting and Wagner, the jury find that Vlassakis is a credible witness against Bunting and Wagner, the jury would be required to set aside and ignore that view of the credibility of Vlassakis when considering the credibility of his evidence against Haydon. The jury would be required to consider afresh the credibility of evidence given by Vlassakis against Haydon by reference only to that evidence and to other evidence admissible against Haydon that supports the version given by Vlassakis against Haydon.
The difficulty to which I have alluded was the subject of consideration in R v Demirok [1976] VR 244, R v Gibb and McKenzie [1983] 2 VR 155 and R v Jones (1991) 55 A Crim R 159. In each instance, the evidence of a critical witness was supported by evidence inadmissible against the appellants. The Courts recognised that the credibility of the witness having been enhanced by inadmissible evidence, in the particular circumstances there was a real danger that the jury would find it impossible to approach the evidence of that witness against the appellant unaffected by the views already formed of the credit of the witness. In Jones, Crocket J highlighted the “unreal” and “contrived” nature of the direction that would be required.
As the Court in Demirok observed, the existence of this difficulty does not necessarily mean that separate trials should be ordered. It is standard practice to inform juries of their right to accept part of the evidence of a witness and to reject other parts. It will not be uncommon for the evidence of an accomplice to be corroborated with respect to one accused and not another. In many cases the Court can be confident that the jury will follow appropriate directions and the public interest factors favouring a joint trial will prevail.
The matter under consideration is quite exceptional. I have already referred to the horrific nature and volume of evidence inadmissible against Haydon that would be led against Bunting and Wagner on a joint trial. As I have indicated, the evidence of Vlassakis is not confined to a single incident or a relatively short period of time. It covers a period of approximately seven years and deals with twelve murders and associated events. Propensity reasoning might be applicable to Bunting and Wagner, but not to Haydon. In the particular circumstances, it would be extraordinarily difficult if not impossible for a jury to ignore the enhancement of the credit of Vlassakis through evidence inadmissible against Haydon when considering the credibility of the version given by Vlassakis that Haydon was present at the murder of Youde and participated in the beating of Youde.
Not without considerable hesitation I have concluded that the trial of Haydon with respect to the charges of murdering Youde and Elizabeth Haydon should be separated from the trial of Bunting and Wagner. The combination of factors to which I have referred, coupled with the complexity of the directions that would be required in a joint trial, have persuaded me that there is a grave risk that Haydon would not receive a fair trial if jointly tried with Bunting and Wagner. I doubt that the separation of the trials will add greatly to the public expense, but I am acutely conscious of the problems created for witnesses. However, I have been driven to the conclusion that the interests of justice require the separation of the trials.
In these circumstances it is unnecessary for me to address the suggestion that in a joint trial Haydon may seek to elicit evidence of Bunting’s violent disposition which would be inadmissible as part of the Crown case. Similarly, it is unnecessary for me to determine whether a single trial of the Youde and Elizabeth Haydon counts is permissible and, if it is, whether separate trials of those counts should be ordered. Those questions and other issues to which I have referred are best left for determination by the trial judge.
For these reasons I ordered that the trial of Haydon upon the charges of murdering Youde and Elizabeth Haydon be separated from the trial of Bunting and Wagner.

[2003] SASC 251

29 October 2003