R v Bunting & Ors (No 3) - [2003] SASC 251

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2003] SASC 251
Decision Date: 29 October 2003

CaseChat Overview and Summary

The case before the court involved three defendants, Bunting, Wagner and Haydon, who were facing charges related to the deaths of Youde, Elizabeth Haydon, and Trezise. The court was tasked with determining whether Bunting and Wagner should be tried together on all counts, and whether Haydon should be tried separately from Bunting and Wagner with respect to the deaths of Youde and Elizabeth Haydon. The legal issues revolved around whether a single trial for Bunting and Wagner would be fair and manageable, and whether a separate trial for Haydon was necessary to ensure a fair trial.

The court considered the arguments of counsel for Bunting, who raised concerns about the length and complexity of a single trial, and the Crown's submission that the evidence against Bunting and Wagner would be relevant and admissible in a joint trial. The court also considered the arguments of counsel for Haydon, who submitted that a separate trial was necessary to ensure a fair trial, and the Crown's submission that Haydon should be tried with Bunting and Wagner due to the cross-admissibility of evidence. Ultimately, the court concluded that a single trial for Bunting and Wagner on all counts was appropriate, and that Haydon should be tried separately with respect to the deaths of Youde and Elizabeth Haydon.

In reaching its decision, the court noted that while a single trial for Bunting and Wagner would be lengthy and complex, it was not so lengthy or complex as to place in jeopardy the right of either accused to a fair trial. The court also found that there was sufficient evidence to support a separate trial for Haydon, as the evidence against Bunting and Wagner was unlikely to be relevant or admissible in respect of the counts against Haydon.

The final orders of the court were that Bunting and Wagner would be tried together on all counts, and that Haydon would be tried separately with respect to the deaths of Youde and Elizabeth Haydon. The court also noted that it possessed the necessary powers to ensure that the trials were fair and manageable.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MARTIN J

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Ratio Decidendi

Legal Principle Established

Established by: MARTIN J

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.